Kevin Whitaker

The applicants brought an application under the Repair and Storage Liens Act arising from a commercial dump truck lease and the repairer's subsequent sale of the vehicle.

The court found that the respondent lessee was in arrears and had breached the lease, and that the respondent repairer sold the truck without providing proper notice to the applicants.

The court also held that, by entering into a further agreement after mailing notices, the repairer waived reliance on the earlier notice.

The sale was found not to be commercially reasonable and contrary to the Act.

The respondent, Sharon Fair, brought a motion in writing to amend the Divisional Court's earlier written reasons, alleging clerical errors.

The applicant school board opposed the motion.

The court noted that the applicant had already obtained leave to appeal the judgment to the Court of Appeal.

The court dismissed the motion, finding that even if it had jurisdiction to amend its reasons, it would be unseemly to do so while an appeal was pending, and that justice would be better served by leaving the determination of any errors to the Court of Appeal.

Following a five‑day civil trial, the court determined the issue of costs.

The plaintiffs argued that the results of the litigation were mixed and that this should affect the costs award.

The court rejected that characterization, finding the action brought by the plaintiffs was the principal issue and that the cross‑claim was of lesser significance.

Considering the principles in Rule 57 of the Rules of Civil Procedure, including proportionality and the reasonable expectations of the losing party, and having regard to settlement offers, the court fixed costs payable to the defendants.

The plaintiffs commenced an action alleging that $100,000 advanced to the defendants' corporation was a loan repayable on demand.

The defendants argued the payment formed part of an investment agreement under which the plaintiffs would purchase a 25% share of the company and become salaried employee-investors.

The court assessed the credibility of the witnesses and found the defendants' evidence more reliable.

The court concluded the transaction was a share purchase agreement with a non-refundable payment rather than a loan.

The plaintiffs therefore failed to establish their claim on a balance of probabilities.

The plaintiff appealed an order setting aside a previous order that struck out the defendants' statement of defence and counterclaim for failure to pay costs.

The motion judge had invoked the inherent jurisdiction of the Superior Court to set aside the order, citing the negligent representation of the defendants' former lawyer.

The Divisional Court allowed the appeal, finding that the motion judge erred in invoking inherent jurisdiction when the matter should have been governed by Rule 59.06(2)(a).

Furthermore, the defendants were not entitled to relief because they failed to take reasonable steps to protect themselves despite being aware of red flags regarding their lawyer's negligence.

The appellant, B.C.R. Construction Incorporated, appealed a trial judgment that awarded the respondent damages for breach of a real estate contract and dismissed the appellant's counterclaim regarding restrictive covenants.

The trial judge had found a binding agreement of purchase and sale, awarded damages for the cost differential and relocation of a house, and granted $100,000 in costs to the respondent due to the complexity of the dismissed counterclaim.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings, legal conclusions, or costs award.

The applicant school board sought judicial review of two Human Rights Tribunal of Ontario decisions finding it discriminated against an employee by failing to accommodate her disability and ordering her reinstatement with damages.

The Divisional Court dismissed the application, finding the Tribunal's decisions on liability and remedy were reasonable and amply supported by the evidence.

The Court also rejected the applicant's arguments regarding procedural fairness and reasonable apprehension of bias.

The defendant brought a summary judgment motion arising from a rear-end motor vehicle collision on the Don Valley Parkway.

The court considered whether the plaintiff could rebut the presumption of negligence that applies where a driver rear-ends another vehicle.

After reviewing affidavit, documentary, and transcript evidence, the court concluded the plaintiff had not rebutted the presumption and had failed to demonstrate any genuine issue requiring a trial.

The evidence established the plaintiff was following too closely and was inattentive to surrounding traffic.

Summary judgment was granted dismissing the plaintiff’s claim.

Following the dismissal of the applicant's application for judicial review, the court received written costs submissions from the respondent Ministry.

The applicant did not provide submissions.

The court found the Ministry's requested costs to be fair and reasonable, awarding partial indemnity costs in the amount of $6,275.

Following the dismissal of her application for judicial review, the applicant opposed an award of costs, arguing the case involved novel human rights issues of public importance.

The Divisional Court rejected this argument, finding the proceeding was a quest for personal vindication arising from fractious collective bargaining, not a public interest matter.

The court awarded the successful respondents $7,500 in costs, discounting their requested amount of $15,000 to exclude expenses related to the involvement of three intervenors.

Following a successful application for judicial review where the court found a denial of procedural fairness by the Town, the applicant sought costs on a full indemnity basis for the application and several related motions.

The Divisional Court held it lacked jurisdiction to award costs for the related motions or to set aside a previous costs order.

However, the court awarded the applicant substantial indemnity costs of $44,329.66 for the judicial review application, citing the Town's conduct that unnecessarily lengthened the proceeding and the denial of procedural fairness.

The applicant sought judicial review of a development charges by-law passed by the respondent municipality, arguing that the municipality failed to provide adequate notice of public meetings, thereby denying procedural fairness.

The Divisional Court found that while the municipality failed to strictly comply with statutory notice requirements for the first meeting, procedural fairness was not denied.

However, the court held that the applicant was denied procedural fairness regarding the second meeting because the Mayor had explicitly promised further notice and an opportunity to be heard, which was not provided.

The court declined to quash the by-law but ordered the municipality to refund development charges paid by the applicant and other affected landowners during an 18-month transition period.

The successful applicant in a labour arbitration judicial review sought partial indemnity costs exceeding $30,000.

The Divisional Court found this amount excessive for a matter that was not overly complex.

The court fixed costs at $7,500, which it deemed to be within the accepted range for such proceedings.

The defendant appealed a trial judgment finding it liable for injuries the plaintiff sustained after falling at its roller skating rink.

The trial judge found the defendant breached its duty under the Occupiers' Liability Act by failing to adequately address a leaking roof, which caused water to pool on the rink floor.

On appeal, the defendant challenged the trial judge's findings on causation, credibility, treatment of corrected discovery evidence under Rule 31.09, and damages.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessments of mixed fact and law.

The appellant appealed a trial decision finding it liable for passing off after it registered a domain name similar to the respondent's and redirected internet traffic to its own competing website.

The trial judge awarded $10,000 in compensatory damages but declined to award punitive damages.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the respondent suffered actual or potential damage.

The court also upheld the $10,000 damages award as a reasonable approximation of the respondent's losses.

The respondent's cross-appeal for punitive damages was also dismissed.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her complaint of discrimination and harassment.

The complaint arose from sexist blog posts made by a union president during a labour dispute.

The Divisional Court upheld the Tribunal's decision, finding it reasonable to conclude that the blog posts were not made 'in the workplace' and that the Tribunal appropriately considered the union president's Charter rights to freedom of expression and association when determining the posts did not constitute discrimination with respect to employment.

The appellant landlords appealed a decision of the Landlord and Tenant Board finding that their mobile home park was subject to rent control.

The landlords argued that the property was exempt under section 6(2)(c) of the Residential Tenancies Act because it was not used as a trailer park before November 1, 1991.

The Board found that because a bungalow on the property had been used for residential purposes before 1991, the exemption did not apply.

The Divisional Court applied a reasonableness standard of review and upheld the Board's interpretation, dismissing the appeal.

The applicant union sought judicial review of a labour arbitration award that denied a grievor's claim for a pension after 31 years of continuous employment.

The majority of the arbitration board had found that the grievor waived his right to pension benefits and that the doctrine of laches barred the grievance.

The Divisional Court held that the arbitration board's decision was unreasonable.

The collective agreement and pension plan documents mandated enrollment for full-time employees and did not permit waiver.

Consequently, the employer bore the obligation to ensure enrollment, and the equitable defence of laches could not apply where waiver was legally impermissible.

The application was granted, the award quashed, and the matter remitted to the arbitration panel.

The corporate plaintiff was ordered to pay $15,000 into court as security for costs.

The sole officer and director paid the amount with his own personal funds.

The defendant later obtained judgment against the plaintiff on its counterclaim and sought an order under the Creditors' Relief Act that the money paid into court be paid out to it as an execution creditor.

The motion judge granted the order.

On appeal, the Divisional Court set aside the order, finding that the funds were impressed with a Quistclose trust in favour of the director who advanced them for a specific purpose.

The funds never belonged to the execution debtor and were not available for distribution to its creditors.

The applicant local unions sought judicial review of decisions by the Ontario Labour Relations Board finding that the international union had just cause to merge them with another local.

The applicants challenged the Board's use of a consultation process rather than a full hearing, and its refusal to order production of a specific report.

The Divisional Court held that the Board's choice of process was within reasonable expectations given its expertise.

Although the Court criticized the Board's failure to order production of the report, it declined to quash the decision, finding the merger was supported by an independent expert's unqualified recommendation.

The application for judicial review was dismissed.