Katherine E. Swinton

The Attorney General for Ontario brought a motion to strike the affidavits of Dr. Robert McMurtry, submitted by the responding party in an application for judicial review challenging wind turbine setback regulations.

The moving party argued the affidavits were irrelevant, contained hearsay, and that the affiant lacked expert qualifications.

The court declined to strike the affidavits in their entirety, leaving issues of relevance, hearsay, and expert qualifications to the panel hearing the merits.

However, the court struck references to studies post-dating the adoption of the regulation, as they could not have informed the regulatory decision.

The applicant, a Toronto city councillor, brought an application for judicial review to quash municipal by-laws authorizing the reimbursement of legal expenses for three other councillors.

The expenses related to compliance audits of election campaign finances and defamation actions.

The Divisional Court held that the by-law reimbursing expenses for the compliance audits was ultra vires, as the expenses were not incurred in the councillors' capacity as members of council.

However, the court upheld the by-law reimbursing expenses for a defamation action brought by a sitting councillor, finding it was reasonably connected to her duties.

The application was granted in part.

The appellant real estate agency appealed a Master's decision refusing leave to amend its statement of claim to add a claim for constructive trust based on unjust enrichment for an unpaid commission.

The appellant sought a constructive trust over $173,840 of the purchase funds deposited in a solicitor's trust account.

The Divisional Court dismissed the appeal, finding that the relationship between a vendor and a real estate agent is that of debtor and creditor, not a trust relationship.

The pleadings failed to establish a nexus between the services rendered and the property, or that a monetary remedy would be inadequate.

The representative plaintiffs in two certified class proceedings regarding allegedly defective implantable defibrillators appealed orders of the motion judge.

The motion judge had ordered the bifurcation of discovery and trial of common issues relating to the quantification of compensation for waiver of tort from the liability issues.

In one of the actions, the motion judge also refused to certify punitive damages as a common issue.

The Divisional Court dismissed the appeals, finding no error in principle in the motion judge's exercise of discretion to bifurcate the proceedings to ensure a fair and expeditious determination.

The Court also upheld the refusal to certify punitive damages as a common issue, agreeing that entitlement to punitive damages could not be rationally determined without first determining individual issues of causation and compensatory damages.

The appellant appealed an order setting aside an Anton Piller order that had been granted ex parte.

The motion judge had set aside the order on the grounds that the appellant failed to demonstrate a threat of serious damage and failed to make full, frank, and fair disclosure of material facts, including alternative means of preserving evidence and the true reasons for a lost client contract.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusions that the appellant failed to satisfy the strict conditions for an Anton Piller order and breached its duty of disclosure.

The applicant, a doctoral student, sought judicial review of a university tribunal's decision finding he violated the student code of conduct due to disruptive behaviour towards his supervisor.

The tribunal imposed restrictions on his contact with the supervisor and access to the laboratory.

The applicant also sought an order of mandamus to compel the university to provide him with a new supervisor.

The Divisional Court dismissed the application, finding that the tribunal accorded the applicant procedural fairness and that the restrictions were within the adjudicator's authority.

The court also declined to issue mandamus, as the applicant had no clear legal right to be provided with a supervisor against a professor's will.

The appellants appealed a decision of the Ontario Securities Commission finding they breached the Securities Act by failing to disclose material changes regarding their mining leases in Sierra Leone.

The appellants argued the leases were not material and the Commission improperly relied on hearsay evidence.

The Divisional Court dismissed the appeal, finding the Commission's decision reasonable, as the company had invested heavily in the leases and actively tried to retain them, making the risk of their loss a material change requiring public disclosure.

The Ministry of Correctional Services brought an application for judicial review of a Human Rights Tribunal order requiring the production of settlement documentation.

The respondent employee sought the documents to prove the Ministry failed to implement previously ordered remedies for workplace racial discrimination.

The Divisional Court dismissed the application, finding that the adjudicator correctly ordered production because the documents were relevant and necessary to address a compelling interest of justice, falling within an exception to settlement privilege.

The applicant, a licensed standardbred horse trainer and owner, sought judicial review of an Ontario Racing Commission (ORC) decision that upheld Woodbine Entertainment Group's (WEG) refusal to allow him to enter horses to race unless he signed an Access Agreement.

The Divisional Court held that while WEG could impose track rules and require an Access Agreement, the ORC acted unreasonably in permitting WEG to insist on terms that purported to give WEG absolute unfettered power to exclude licensed participants without fault or procedural fairness.

The application for judicial review was granted in part, prohibiting WEG from excluding the applicant's horses solely for refusing to sign the current Access Agreement.

The appellant acquired 124 of 147 percentage interests in an apartment building held by tenants in common.

Unable to acquire the remaining interests, the appellant applied under the Partition Act for an order for the sale of the entire building.

The application judge dismissed the application.

On appeal, the Divisional Court held that while the appellant had a prima facie right to a sale, its conduct was oppressive.

The appellant sought to force a sale to acquire the entire building for its own profit, undermining the reasonable expectations of the minority co-owners who lived in the building and would suffer significant hardship.

The appeal was dismissed.

The applicant appealed a Law Society Hearing Panel order suspending her licence for two and a half months.

She sought a permanent stay of proceedings, arguing her language rights were violated because the Law Society failed to form a francophone Appeal Panel in a timely manner.

The Divisional Court found that while the Law Society failed to demonstrate it took all necessary steps to fulfill its language rights duties, the applicant unilaterally began serving her suspension and did not show that allowing the appeal to proceed would be contrary to the interests of justice.

The application for a permanent stay was dismissed, but a temporary stay was continued until the appeal could be heard.

The employer sought judicial review of an interest arbitration award, arguing the arbitration board breached procedural fairness by considering post-hearing wage settlement data without allowing further submissions.

The Divisional Court dismissed the application, finding that the board used the public information in a supplementary and confirmatory manner.

The court held that this approach was consistent with the flexible duty of fairness and the legislative nature of interest arbitration.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario suspending its liquor licence for six days for permitting drunkenness and serving an intoxicated patron.

The appellant argued it was denied procedural fairness when the Board restricted cross-examination regarding an adjacent establishment, that the Board failed to articulate a legal test for intoxication, and that the penalty was excessive.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness, no error of law in applying the plain meaning of intoxication, and that the penalty was reasonable.

The plaintiffs, family members of a young man shot and killed by police, brought an action against the Special Investigations Unit (SIU) alleging negligent investigation.

The defendants moved to strike the claim under Rule 21, arguing the SIU owed no private law duty of care to the family.

The motion judge dismissed the motion, finding it was not plain and obvious the claim would fail.

The Divisional Court dismissed the defendants' appeal, holding that the existence of a duty of care in these circumstances is a novel question of law that should be determined on a full evidentiary record at trial, applying the Anns/Cooper test.

The applicants sought judicial review of an interlocutory decision of the Ontario Racing Commission dismissing their motion for a stay of proceedings based on alleged inadequate disclosure and delay.

The Divisional Court dismissed the application, finding that the Commission reasonably concluded that the disclosure order had been complied with, correctly applied the Stinchcombe test for disclosure, and did not deny procedural fairness or improperly shift the onus of proof.

The appellant sought to overturn a decision of the Vice-Chair of the Alcohol and Gaming Commission refusing to adjourn scheduled hearings.

The Divisional Court dismissed the appeal, holding that an appeal lies only from a final decision of the Board, not an interlocutory decision refusing an adjournment.

The court also noted that even if treated as an application for judicial review, it would be premature.

The appellant, an Evangelical Christian organization operating community living residences, appealed a Human Rights Tribunal decision finding it discriminated against a support worker on the basis of sexual orientation.

The Tribunal had held the organization could not rely on the religious exemption in s. 24(1)(a) of the Human Rights Code because it served the broader public rather than primarily serving its own religious group.

The Divisional Court found the Tribunal erred in its interpretation of s. 24(1)(a) by failing to consider the organization's subjective religious purpose in providing charitable services.

However, the Court upheld the Tribunal's conclusion that the prohibition on same-sex relationships was not a bona fide occupational qualification for a support worker, as the role did not involve religious proselytization.

The Court also upheld the finding of a poisoned work environment but narrowed the systemic remedies ordered by the Tribunal.

The appellant appealed a decision of the Criminal Injuries Compensation Board dismissing her claim for compensation for alleged criminal acts by her former boyfriend.

The appellant argued the Board erred in law and discriminated against her based on her mental disability.

The Divisional Court dismissed the appeal, finding the Board made no errors of law and its factual findings regarding the lack of intent for assault and the unreliability of the sexual assault allegations were supported by the evidence.

The Court held the Board properly distinguished between credibility and reliability, and appropriately considered the appellant's mental illness as a factor affecting her ability to accurately perceive and recall events at the time.

The appellant lawyer appealed a decision of the Law Society Appeal Panel finding him guilty of professional misconduct for refusing to attend an interview with a Society investigator.

The appellant argued that the Law Society Act only authorized the Society to require the provision of information, not attendance at an oral interview.

The Divisional Court dismissed the appeal, holding that the standard of review was reasonableness and that the Society's broad duty to protect the public interest required effective investigation powers, including the authority to compel oral interviews.

The appellant tenant appealed a Landlord and Tenant Board decision terminating his tenancy for non-payment of rent and dismissing his applications.

At the hearing, the Board granted the landlord's motion to remove the tenant's representative and subsequently denied the tenant's request for an adjournment to obtain new representation.

The Divisional Court allowed the appeal, finding that the Board's refusal to grant an adjournment under the circumstances was arbitrary and constituted a denial of natural justice.

The matter was remitted to a different member of the Board.