Katherine E. Swinton

The landlord appealed a Landlord and Tenant Board decision granting the tenants a 2.5 per cent rent reduction due to the loss of green space resulting from infill construction.

The Board had found the lands constituted a 'common recreational facility' under the Tenant Protection Act, 1997.

The Divisional Court allowed the appeal, holding that ordinary green space does not meet the statutory definition of a facility, which requires something built or installed to perform a particular function.

The Court also found the Board erred in law by calculating the rent reduction using a novel mathematical approach rather than the mandatory method prescribed by regulation.

The respondents brought a motion to a panel of the Divisional Court to vary an order that refused to strike certain material from the applicant's application record.

The material in question referenced a 'without prejudice' settlement offer made during a tax dispute.

The Divisional Court granted the motion, finding that the motions judge erred in his application of the test for settlement privilege.

The court held that the communications met the three-part test for settlement privilege and that the applicant failed to demonstrate a compelling or overriding interest of justice to justify an exception to the privilege.

The appellant appealed a Licence Appeal Tribunal decision directing the Registrar to revoke his motor vehicle dealer registration.

The Tribunal found that the appellant's past conduct, including numerous undisclosed Highway Traffic Act convictions related to operating an inspection station, afforded reasonable grounds to believe he would not carry on business with honesty and integrity.

The Divisional Court dismissed the appeal, finding no denial of natural justice and concluding that the Tribunal's decision was reasonable and supported by ample evidence.

The appellant successfully defended a claim for trespass and damage to property at trial, but the trial judge dismissed the claim without costs and without giving the appellant an opportunity to make costs submissions.

On appeal, the Divisional Court held that while a trial judge has discretion to refuse costs, procedural fairness requires hearing submissions first.

The court considered the matter afresh and awarded the appellant costs of the trial on a partial indemnity scale, as well as $7,000 for the appeal.

The appellant appealed a decision of the Law Society Appeal Panel which had quashed her appeal from a Hearing Panel's dismissal of her motion challenging jurisdiction.

The Law Society argued the Divisional Court lacked jurisdiction because the Appeal Panel's decision was not a final order under section 49.38 of the Law Society Act.

The Divisional Court agreed, finding that the right of appeal is statutory and limited to final dispositions of disciplinary proceedings.

The appeal was quashed for want of jurisdiction.

The respondent parents sought costs on a full indemnity basis against the children's aid society following an appeal.

The court applied the Family Law Rules, noting that the presumption of costs to the successful party does not apply in child protection cases involving a government agency.

The court found that the society did not act unfairly or unreasonably in pursuing the appeal, as it acted out of concern for the child's best interests and was supported by the Office of the Children's Lawyer.

Consequently, no costs were awarded.

The applicant, a paralegal, sought a declaration that the Law Society of Upper Canada's by-laws regulating paralegals under the Access for Justice Act, 2006 were of no force and effect, arguing the Act infringed s. 15 of the Charter.

He also sought judicial review of the Lieutenant Governor's decision to grant royal assent to the Act.

The Divisional Court dismissed the application, holding that occupational status is not a protected ground under s. 15 of the Charter.

Furthermore, the court held that the granting of royal assent is a constitutional convention not subject to judicial review.

The applicant physician brought a motion to stay a hearing before the hospital's Board of Directors regarding the termination of his hospital privileges, pending an application for judicial review.

The applicant alleged lack of notice and reasonable apprehension of bias.

The court found the applicant's case weak on the merits and that he would not suffer irreparable harm if the hearing proceeded.

The balance of convenience favoured continuing the hearing.

The motion for a stay was granted only to the extent that the Board was ordered not to disclose its decision until after the disposition of the judicial review application.

The appellant sought leave to adduce fresh evidence on his appeal from a Discipline Committee's finding of professional misconduct.

The proposed fresh evidence was a subsequent Registration Committee decision refusing to permit him to be registered to practice due to the misconduct finding.

The Divisional Court applied the Palmer test and dismissed the motion, finding the evidence was not relevant to whether the appellant's actions constituted professional misconduct and could not reasonably be expected to affect the Discipline Committee's decision.

The Office of the Children's Lawyer appealed an interlocutory order requiring it to pay for a mother's psychiatric assessment in a custody dispute.

The Divisional Court allowed the appeal, finding that the motions judge lacked jurisdiction to order the disbursement of public funds for a private benefit absent specific legislative authority or a Charter breach involving an indigent litigant.

The order was set aside, and the father was ordered to pay for the assessment subject to reallocation at trial.

The applicant physician sought judicial review of a decision by the Health Professions Appeal and Review Board, which had overturned a decision by the College of Physicians and Surgeons' Complaints Committee to take no further action on a complaint.

The complaint alleged the physician treated a patient with contempt and prejudice before the patient's death from pneumonia.

The Divisional Court found that the Board failed to apply the proper standard of reasonableness and deference to the Committee's screening function.

The Court held that the Board's requirement for further investigation into the physician's credibility and use of the word 'lifestyle' was unreasonable.

The application for judicial review was granted, the Board's decision was set aside, and the Committee's decision was restored.

The applicant sought to have no costs awarded following an unsuccessful application and motion.

The Divisional Court held that costs should follow the event, as there was no novel issue or public interest raised.

The court rejected the York University Faculty Association's request for substantial indemnity costs and awarded $1,500 to York University and $3,500 to the Faculty Association, payable by the applicant.

The applicant union sought judicial review of an arbitration award that dismissed its grievance regarding the assignment of teaching duties to principals and vice-principals.

The school board's assignment of these duties resulted in partial redundancies for some bargaining unit teachers.

The Divisional Court dismissed the application, finding the arbitrator's decision reasonable.

The court held that section 287.1(1) of the Education Act unambiguously permits a school board to assign teaching duties to principals and vice-principals, and that such assignments did not constitute a declaration of redundancy under O. Reg. 90/98.

The plaintiffs in a proposed class proceeding against the manufacturer of the drug Vioxx sought to have a former federal Minister of Health represent them on a certification motion.

The defendant successfully moved to disqualify the lawyer under rule 6.05(5) of the Rules of Professional Conduct, which prohibits a lawyer who has left public office from acting in a matter for which they had substantial responsibility.

The plaintiffs appealed.

The Divisional Court dismissed the appeal, finding the motion judge reasonably concluded that the lawyer's former responsibility for Health Canada during the drug's approval created potential private and public conflicts of interest.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld two arbitrators' refusals to order independent medical examinations of the respondent claimant.

The arbitrators had denied the insurer's requests primarily due to the insurer's delay in seeking the examinations until the eve of or during the arbitration hearings.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding that the Director's Delegate reasonably concluded the arbitrators had properly exercised their discretion to refuse the examinations in the interests of fairness and preventing delay.

The Society appealed a trial judge's order returning a seven-year-old child to her mother's care under supervision.

The Society argued the trial judge made palpable and overriding errors in fact-finding and failed to properly weigh the child's best interests.

The Divisional Court dismissed the appeal regarding the child's placement, finding no palpable and overriding errors and noting that fresh evidence of the mother's recent alcohol use was insufficient to alter the result.

However, the Court allowed the appeal in part to quash a term requiring the Society to assign an American Sign Language-familiar worker, as counsel had not been given an opportunity to make submissions on that issue.

The appellant children's aid society appealed an order of the lower court in a child protection proceeding.

The Divisional Court allowed the appeal in part, quashing the paragraph of the order that required the society to assign a family worker familiar with American sign language.

The remainder of the lower court's order was confirmed, and the parties were encouraged to prepare a re-integration plan for the child prior to the resumption of school.

The appellant appealed a Tribunal decision imposing conditions on his real estate broker registration.

The respondent cross-appealed the Tribunal's finding that the appellant would conduct his business with honesty and integrity.

The Divisional Court dismissed both the appeal and cross-appeal, finding that the Tribunal had jurisdiction under s. 14(5) of the Real Estate and Business Brokers Act, 2002 to impose conditions to protect the public.

The Court also found the Tribunal's conclusion regarding the appellant's past conduct and future integrity was reasonable.

Prestige Toys Ltd. appealed a Licence Appeal Tribunal decision revoking its motor vehicle dealer registration due to failure to disclose material facts to purchasers and misrepresenting selling prices.

The Registrar cross-appealed the Tribunal's refusal to revoke the salesperson registration of Lioubimova, the sole officer and director.

The Divisional Court dismissed Prestige's appeal, finding the Tribunal reasonably interpreted the Motor Vehicle Dealers Act to consider the past conduct of both the corporation and its director.

The Court allowed the Registrar's cross-appeal, finding the Tribunal failed to properly analyze evidence of Lioubimova's personal involvement, and remitted her matter for a re-hearing.

The applicants sought judicial review of decisions by two coroners refusing to issue a summons to a government official to testify about the composition of the jury roll in the Thunder Bay district, specifically regarding the representation of First Nations individuals.

The Divisional Court dismissed the applications, holding that coroners have no statutory authority under the Coroners Act to inquire into or remedy the process used by the sheriff to compile the jury roll under the Juries Act.

The court found no jurisdictional error or breach of natural justice in the coroners' refusals.