Katherine E. Swinton

The Director of the Ontario Disability Support Program appealed a Social Benefits Tribunal decision finding the respondent to be a 'person with a disability' under s. 4(1) of the Ontario Disability Support Program Act.

The Director argued the Tribunal erred by relying on the respondent's testimony to find a 'substantial' impairment, asserting that medical evidence was required.

The Divisional Court dismissed the appeal, holding that while medical evidence is required to verify the impairment, the determination of whether it is 'substantial' requires consideration of the totality of the evidence, including the claimant's credible testimony.

The applicants sought leave to appeal an Assessment Review Board decision classifying their properties, which were under construction for residential condominiums, as multi-residential rather than residential for property tax purposes.

The Divisional Court found no error in the Board's interpretation that buildings under construction constitute 'vacant land' under O. Reg. 282/98, as they were not yet being used.

The Court also upheld the Board's finding that the properties were principally zoned for multi-residential development.

The motion for leave to appeal was dismissed.

The Attorney General appealed the dismissal of an application for civil forfeiture of $9,616.98 seized from an individual arrested for marijuana possession.

The application judge had dismissed the application, finding the Attorney General failed to prove the funds were proceeds of unlawful activity and that forfeiture would not be in the interests of justice due to withdrawn criminal charges and potential Charter breaches.

The Divisional Court allowed the appeal, holding that the application judge erred by disregarding the individual's prior drug record, the lack of an innocent explanation for the funds, and the individual's consent to forfeiture.

The Court further held that withdrawn charges and potential Charter breaches do not render forfeiture clearly not in the interests of justice.

The applicant sought judicial review of an interlocutory decision by the Law Society Hearing Panel dismissing her motion for a permanent stay of disciplinary proceedings.

She alleged procedural fairness violations because the panel considered public documents not entered in evidence, and raised language rights issues regarding the delayed translation of the reasons.

The Divisional Court dismissed the application as premature, finding no exceptional circumstances to justify fragmenting the administrative process.

The court held that both the procedural fairness and language rights issues should be raised before the Law Society Appeal Panel after a final decision.

The applicant sought judicial review of an interlocutory decision by the Law Society Hearing Panel refusing to permanently stay disciplinary proceedings against her.

She alleged breaches of procedural fairness and language rights, noting the Panel released its reasons in English and provided a French translation six weeks later despite the hearing being in French.

The Divisional Court dismissed the application as premature, finding no exceptional circumstances to justify fragmenting the administrative process.

The Court held that the applicant could raise both the procedural fairness and language rights issues before the Law Society Appeal Panel at the conclusion of the proceedings.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding they breached the procedural duty to accommodate the respondent employee's disability.

The applicants argued the employee had repudiated his employment contract, negating any duty to accommodate.

The Divisional Court held the Tribunal's conclusion that the employer failed to sufficiently inquire into the employee's medical condition was reasonable.

The Court also declined to dismiss the application for undue delay, accepting counsel's explanation of ill health.

The application for judicial review was dismissed with costs.

The Health Professions Appeal and Review Board (HPARB) brought a motion to intervene as a friend of the court in an application for judicial review of a Human Rights Tribunal of Ontario decision.

The underlying application was brought by the College of Nurses of Ontario.

The court dismissed the motion, finding that HPARB's participation was not necessary to assist the court, as other parties were well-equipped to address the relevant issues.

Furthermore, the court noted that HPARB's proposed submissions were inappropriately adversarial for a quasi-judicial tribunal.

The applicant employer sought judicial review of an arbitration award that granted statutory holiday pay to employees on inactive status receiving WSIB benefits.

The employer argued the arbitrator failed to address its central argument under s. 24(1) of the Employment Standards Act, 2000, which would result in zero holiday pay for these employees.

The Divisional Court found the arbitrator's decision unreasonable, as it lacked justification and intelligibility regarding how the entitlement to payment was determined without addressing the statutory formula.

The application was allowed and the issue remitted to a new arbitrator.

The appellant appealed a decision striking out his Statement of Defence and granting default judgment to the respondent bank for money owed on a visa account and personal line of credit.

The appellant had previously sued the bank in Small Claims Court over a set-off of funds, which he lost.

The Divisional Court dismissed the appeal, finding no error in the motion judge's decision and noting that the appellant's defence was based on allegations already decided in Small Claims Court, rendering them subject to res judicata and cause of action estoppel.

The appellants appealed a judgment granting an application to terminate their membership and occupancy rights in a co-operative and ordering a writ of possession.

The Divisional Court dismissed the appeal, finding that the application judge correctly applied the reasonableness standard to the co-operative board's eviction decision, which was justified by the appellants' arrears and history of late payments.

The court also found no denial of procedural fairness and upheld the application judge's exercise of discretion in granting the writ of possession.

The applicant, a former Justice of the Peace, sought judicial review of an Order-in-Council revoking his appointment following a recommendation by a Hearing Panel of the Justices of the Peace Review Council.

The applicant argued the Panel erred in denying severance of allegations, gave inadequate reasons, imposed an unreasonable disposition, and that he was denied procedural fairness by not being allowed to make submissions to the Executive Council.

The Divisional Court dismissed the application, finding the Panel's decisions reasonable and concluding that the statutory scheme provides procedural fairness during the hearing process, not before the Executive Council.

The applicant union brought an application for judicial review of an arbitration award that dismissed a policy grievance concerning early retirement and separation allowances during long-term layoffs.

The Arbitrator had concluded that the specific benefits in Article 10.14 of the collective agreement only applied to layoffs resulting from integrations and rationalizations, not general layoffs.

The Divisional Court dismissed the application, finding the Arbitrator's interpretation of the collective agreement was reasonable and fell within a range of acceptable outcomes.

The applicants, pharmacists facing discipline proceedings, sought judicial review of an interlocutory decision by the Discipline Committee denying their motion for extensive disclosure of third-party medical and billing records.

The Divisional Court declined to hear the application, finding it premature.

The court reiterated that judicial review of interlocutory administrative decisions is only available in exceptional circumstances or where jurisdiction is irretrievably lost.

Finding no denial of natural justice and noting that extensive disclosure had already been provided, the court quashed the application.

The appellant appealed a decision denying certification of a class proceeding.

The appellant sought to proceed with the appeal based on a proposed Amended Statement of Claim that was not before the motions judge.

The Divisional Court held that it could only review the decision based on the original record and was not the proper forum for a first-instance decision on certification based on new pleadings.

Given the appellant's intention to seek an amendment regardless of the appeal's outcome, the appeal was deemed moot and stayed, with directions for the appellant to bring a motion to amend and certify in the court below.

The applicant resort sought judicial review of an Ontario Labour Relations Board decision upholding an inspector's order.

The order required the resort to report the drowning of a guest in an unsupervised swimming pool under s. 51(1) of the Occupational Health and Safety Act.

The Divisional Court upheld the Board's findings that 'person' includes non-workers and that the swimming pool was a 'workplace' because workers perform duties there, even if none were present during the incident.

The application for judicial review was dismissed.

The appellant Township appealed a decision setting aside a master's order that required the respondent to deliver a further and better affidavit of documents.

The master's order was based on admissions made by the respondent in response to a request to admit regarding the existence of documents proving damages.

The Divisional Court dismissed the appeal, holding that using a request to admit to force a party to state whether it has documents evidencing damages is improper and a nullity.

Consequently, the respondent's admissions were also a nullity, and the appeal judge did not err in setting aside the master's order.

The applicant sought judicial review of the LCBO's decision to award an agency store authorization to a competitor following a Request for Proposal process.

The Divisional Court dismissed the application, holding that the LCBO's decision was a commercial arrangement not subject to judicial review, as it did not involve the exercise of a statutory power of decision and lacked a sufficient public interest element.

In the alternative, the Court found that the procurement process was fair and the LCBO's decision was reasonable.

The applicant sought judicial review of two decisions by the Workplace Safety and Insurance Appeals Tribunal denying him compensation for a back injury allegedly sustained at work.

The applicant argued the Tribunal adjudicator was biased and that the decisions were unreasonable.

The Divisional Court dismissed the application, finding no reasonable apprehension of bias as the applicant failed to object at the hearing, and concluding the Tribunal's finding that no workplace accident occurred was reasonable and supported by the evidence.

The Children's Aid Society brought a motion to enforce a settlement of an appeal in a child protection matter.

The appellant father had offered to withdraw his appeal if the Society undertook to place the child for adoption in Canada, with the offer open until one minute after the commencement of the appeal.

The appeal was called but adjourned to appoint counsel for the child, without any argument on the merits.

The Society subsequently accepted the offer.

The Divisional Court held that the appeal had not commenced, the offer remained valid, and enforcing the settlement was in the child's best interests.

The applicant sought judicial review of a decision by the Human Rights Tribunal of Ontario dismissing his application for unreasonable delay.

The events underlying the complaint occurred in 1994, but the application was not filed until 2010.

The Divisional Court held that the Tribunal reasonably concluded the 15-year delay would cause substantial prejudice to the respondents and that the delay was not incurred in good faith.

The application for judicial review was dismissed.