Kathryn N.M. van Rensburg

Costs decision arising from a Rule 21 motion in a proposed class proceeding.

The plaintiffs sought partial indemnity costs after largely resisting the defendants’ motion to strike, while the defendants sought costs because the plaintiffs abandoned several claims during the motion, including conspiracy and negligence claims involving the Attorney General of Canada.

The court found that the plaintiffs substantially succeeded on remaining claims but materially altered their pleadings and abandoned significant allegations during the hearing.

Given the divided success and the altered nature of the action, the court concluded that neither side should receive costs.

In a class proceeding, the court determined costs arising from motions concerning the approval of the form, content, and timing of a certification notice and a motion by a class member to participate.

The participating class member was granted leave under s. 14 of the Class Proceedings Act to participate in the notice motion.

Although the plaintiffs succeeded on the timing of notice and the participating class member succeeded on participation, neither side was fully successful regarding the notice content, particularly concerning references to related U.S. proceedings.

The court held that class members who actively participate may be exposed to costs under s. 14(2), notwithstanding the protection for passive class members under s. 31.

However, given the novelty of issues concerning overlapping global class members and parallel U.S. proceedings, the court declined to award costs to any party.

The defendants brought a motion to strike the plaintiffs' proposed class action claims relating to the importation of vehicles from the United States into Canada.

The plaintiffs alleged that the defendants conspired to force importers to pay for unnecessary modifications and certifications by manipulating Transport Canada's admissibility list.

The court dismissed the motion to strike the Competition Act, Consumer Protection Act, and unjust enrichment claims.

The court struck the claim for unlawful purpose conspiracy without leave to amend, but allowed the unlawful conduct conspiracy claim to proceed.

The plaintiffs were granted leave to amend their claim for intentional interference with economic interests.

The applicant union sought judicial review of an arbitrator's decision regarding the effective date for retroactive salary adjustments for employees newly included in the bargaining unit.

The arbitrator had ruled that compensation would run from the date an employee was found or agreed to come within the unit, rather than the date of the initial grievance.

The Divisional Court dismissed the application, finding the arbitrator's remedial decision was reasonable given the complex, multi-year dispute involving multiple unions and hundreds of disputed positions.

The applicant, a postgraduate medical resident in Cardiac Surgery, sought judicial review of a university Senate Appeals Committee decision requiring her to enter a six-month remediation period before advancing to the next year of her program.

She argued the decision was unreasonable and that she was denied procedural fairness due to a reasonable apprehension of bias, an inability to cross-examine witnesses, and inadequate reasons.

The Divisional Court dismissed the application, finding the academic decision was reasonable and that the requirements of procedural fairness were met, noting courts should only interfere in university academic affairs in cases of manifest unfairness.

The plaintiffs in an Ontario securities class action moved for approval of the notice of certification.

The lead plaintiff in parallel U.S. proceedings, who was also a member of the Ontario global class, moved to participate in the motion, arguing that the notice should be delayed and should include detailed information about the U.S. proceedings.

The court granted the U.S. plaintiff standing to participate but held that the notice of certification should be issued promptly to protect class members' litigation autonomy.

The court determined that the notice should inform class members of the existence of the U.S. proceedings but should not include detailed or comparative information, as that would be confusing and unnecessary at this stage.

The applicant mother sought final orders regarding access and child support following separation and divorce.

The respondent father, who struggled with alcohol abuse and failed to attend trial, had exercised access inconsistently and frequently missed scheduled visits, causing instability for the child.

An investigation by the Office of the Children’s Lawyer recommended supervised access due to concerns about the respondent’s reliability and personal instability.

The court accepted those recommendations and ordered supervised access at a supervised access centre on alternate Sundays, with scheduled telephone contact.

The court also imputed income of $50,000 to the respondent for child support due to failure to provide disclosure and evidence that he was capable of earning that amount as a licensed electrician.

The accused was charged with one count of sexual assault following an incident at his apartment.

The complainant alleged that the accused forced intercourse and digitally penetrated her, while the accused denied any sexual contact, claiming he only physically struggled to remove her from his home.

The court assessed the credibility of both parties, applying the W.(D.) framework.

Relying on the complainant's credible testimony, corroborating physical evidence including damage to the apartment, and DNA evidence linking the accused to a condom found at the scene, the court found the accused guilty of sexual assault.

The applicant professional regulatory body issued a summons to the respondent police chief for the production of a Crown brief related to criminal charges against a physician.

The respondent refused to comply, arguing that the screening process from D.P. v. Wagg applied.

On a stated case, the Divisional Court held that the public interest principles identified in Wagg apply to a summons issued by the regulatory body.

While the specific civil screening process is not strictly required, the lack of notice to the Attorney General and an opportunity to raise public interest concerns constitutes a lawful excuse for refusing to comply with the summons.

The applicant, Bot Construction Limited, sought judicial review of the Ministry of Transportation's decision to award a road construction contract to a competing bidder.

The applicant argued that the winning bid was non-compliant because it failed to declare imported steel, despite the project specifications requiring rolled steel beams that are unavailable in Canada.

The Divisional Court found that the Ministry's decision that the bid was compliant was unreasonable, as the bid could not meet the mandatory specifications using only Canadian steel.

The Court held that the Ministry breached its duty of fairness by privately accepting the winning bidder's proposal to substitute welded steel without notifying other bidders, and quashed the contract award.

The applicant sought judicial review of a decision by the Provincial Schools Admission Committee denying her admission to a provincial school for the deaf.

The applicant, who has a developmental brain malformation and severe language delays, communicates primarily using American Sign Language.

The Committee denied admission based on audiological reports showing normal peripheral hearing, concluding she did not have an auditory handicap.

The Divisional Court allowed the application for judicial review, finding the Committee breached procedural fairness by excluding relevant documents and hearing from a Ministry witness without the applicant's knowledge.

The Court also found the Committee failed to properly consider all medical evidence regarding the applicant's central auditory processing disorder.

The decision was set aside and remitted to a newly constituted committee.

The parents appealed a summary judgment order declaring their child a Crown ward without access.

They argued the motions judge erred by admitting past parenting capacity assessments and that the summary judgment rule in child protection cases violated section 7 of the Charter.

The Divisional Court dismissed the appeal, finding the assessments were expressly admissible under the Child and Family Services Act and declining to hear the Charter challenge as it was raised for the first time on appeal without an evidentiary foundation.

The applicant applied for judicial review of the government's response to the recommendations of the Deputy Judges Remuneration Commission.

The Commission had recommended significant increases to the per diem rate for deputy judges.

The government accepted the initial increase for 2005 but rejected the subsequent annual increases, substituting lower increases based on economic conditions and public sector compensation trends.

The Divisional Court dismissed the application, finding that the government's response met the constitutional standard of rationality as it articulated legitimate reasons based on a reasonable factual foundation and respected the commission process.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Director's Delegate had overturned a preliminary arbitration order that found the respondent insured's application for mediation was time-barred.

The Divisional Court held that the Director's Delegate was reasonable in concluding that the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule did not begin to run until the insurer provided notice of refusal to pay following a negative Designated Assessment Centre report, rather than from the initial notice of stoppage of benefits.

The application for judicial review was dismissed.

The appellant appealed a Master's decision striking its statement of defence and counterclaim for failing to comply with a 'last chance' order requiring the fulfillment of undertakings and particulars of damages.

The Divisional Court allowed the appeal, finding that the Master misapprehended the evidence and the specific wording of the order, as the appellant had substantially complied by providing particulars, and the order did not require documentary evidence.

The Master's decision was set aside and costs were awarded to the appellant.

The applicant employer sought judicial review of an arbitration award that found a deemed termination of a grievor's employment, entitling him to termination and severance pay under the Employment Standards Act.

The Divisional Court granted the application and quashed the award, finding that the arbitrator breached natural justice by deciding the case on the basis of frustration of contract—an issue not advanced by the union—without allowing the parties to address it.

The Court also found the arbitrator's decision unreasonable because he failed to determine a specific termination date and ignored evidence of a continuing employment relationship.

The appellants, an architect and his firm, appealed a decision of the Discipline Committee of the Ontario Association of Architects finding them guilty of professional misconduct.

The misconduct involved affixing a seal to a design not prepared under the architect's personal supervision and knowingly misrepresenting to a building inspector that construction complied with the Building Code despite the presence of non-compliant French doors.

The Divisional Court dismissed the appeal, upholding the Committee's jurisdiction, its interpretation of the regulations, and its conclusion that peer evidence was not required to find the conduct dishonourable.

The penalty of a four-month suspension and costs was also upheld.

The appellants appealed the dismissal of their application under the Road Access Act to close an access road on their land, which provided the sole motor vehicle access to the respondents' cottage.

The parties had been litigating over the road for 20 years.

The Divisional Court dismissed the appeal, finding that the appellants' application was an attempt to relitigate an issue that was res judicata due to a 2005 consent order.

The court also found that the respondents had a legal right to use the road based on previous agreements and court orders.

The appellant appealed a Small Claims Court judgment awarding the respondent damages for unpaid rent and dismissing the appellant's counterclaim for damage to its goods.

The Divisional Court upheld the trial judge's finding that the arrangement was a license rather than a lease, and found no palpable and overriding error in the dismissal of the counterclaim due to insufficient evidence of causation.

However, the court allowed the appeal in part, reducing the respondent's damages from six months' rent to four months' rent to account for interference with the appellant's access and the improper inclusion of a notice period.