Kevin Whitaker

The parents appealed a summary judgment finding their newborn child in need of protection and making the child a Crown Ward without access.

The child was apprehended at birth due to the parents' extensive history with the children's aid society, which included four other children being removed from their care.

The motions judge relied on past parenting evidence and found no genuine issue for trial.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the motions judge's application of the summary judgment rules or reliance on past judicial findings.

The successful appellants, Ostrander Point GP Inc. and the Director of the Ministry of the Environment, sought costs following their successful appeal of an Environmental Review Tribunal decision regarding a wind turbine development.

The respondents, Prince Edward County Field Naturalists (PECFN) and Alliance to Protect Prince Edward County (APPEC), argued that no costs should be awarded as it was public interest litigation.

The Divisional Court applied the five-factor test for public interest litigation and concluded that costs should be awarded, as the respondents had a direct interest and the appellant was a private actor.

The court fixed costs at $40,000 against PECFN and $10,000 against APPEC, plus transcript disbursements.

The respondents were seasonal agricultural workers who were seriously injured in a motor vehicle accident shortly after arriving in Ontario.

They remained in Ontario for medical treatment after their work permits expired and sought continued OHIP coverage.

The Health Services Appeal and Review Board found they were eligible for continued coverage.

The appellant appealed.

The Divisional Court allowed the appeal, finding that the plain wording of the regulation requires a valid work permit for OHIP eligibility, and the respondents ceased to be eligible once their permits expired.

The applicants brought a motion for contempt against a respondent who had previously been declared a vexatious litigant and permanently enjoined from communicating with or publishing commentary about the applicants.

The applicants filed extensive electronic materials demonstrating continued communications and publications alleging misconduct and bribery by judges and law enforcement officials involved in the earlier proceedings.

The court considered whether the respondent’s conduct was intentional and whether mental health issues might affect her ability to form the requisite intent for contempt.

Pursuant to s. 105 of the Courts of Justice Act, the court ordered a psychiatric assessment before determining liability and sentencing.

Costs were reserved pending completion of the assessment.

The respondent, having been successful in the appeal, sought costs on a substantial indemnity basis, citing criticisms of the appellant's counsel.

The Divisional Court rejected the request for substantial indemnity costs, finding that counsel's failure to remit a notice of hearing was minimally inconvenient and that punishing a party for their counsel's inaccurate time estimate was inappropriate.

Costs were awarded to the respondent fixed at 60% of actual costs, inclusive of disbursements and taxes.

The defendant franchisor appealed a motion judge's refusal to transfer the venue of a franchise dispute from Hamilton to Kitchener.

The defendant argued the motion judge erred by not requiring the plaintiffs' chosen venue to have a rational connection to the claim, relying on the Siemens decision.

The Divisional Court dismissed the appeal, clarifying that motions to change venue require a holistic application of the factors in Rule 13.1.02(2) of the Rules of Civil Procedure.

The court found no error in the motion judge's balancing of the factors and affirmed that a plaintiff's choice of venue, even if lacking a strong rational connection, may be upheld if the defendant fails to demonstrate that a transfer is desirable in the interests of justice.

The applicant sought judicial review of a Law Society Appeal Panel decision dismissing his appeal from a Hearing Panel that denied his application for a paralegal licence.

The Hearing Panel found he did not meet the good character requirement because he had breached a previous undertaking not to provide unauthorized legal services.

The Divisional Court dismissed the applicant's motion to introduce fresh evidence and dismissed the application for judicial review, finding the Appeal Panel's decision was reasonable and supported by the evidence.

The appellant lawyer, acting as an executor, advanced an unsecured loan from estate assets to an employee to placate a client.

The Law Society Hearing Panel found this to be conduct unbecoming a lawyer and a breach of fiduciary duty.

The Appeal Panel affirmed the decision.

On appeal to the Divisional Court, the appellant argued the panels failed to properly apply the prudent investor test under section 27 of the Trustee Act.

The court dismissed the appeal, finding the standard of review was reasonableness and the panels correctly concluded the investment was imprudent as it was motivated by personal interests rather than an overall investment strategy.

The applicant, a suppression firefighter, sought judicial review of a Human Rights Tribunal of Ontario decision that summarily dismissed his age discrimination complaint regarding mandatory retirement at age 60.

The Tribunal had dismissed the complaint under Rule 19A, finding no reasonable prospect of success based on a previous test case (Espey) that upheld the mandatory retirement provision as a bona fide occupational requirement.

The Divisional Court held that the Tribunal's decision was reasonable, as the applicant failed to provide evidence demonstrating that the result in his case would differ from the established precedent.

The appellant appealed a Small Claims Court decision dismissing its action for breach of contract against the respondent paralegal.

The appellant claimed the parties had reached a verbal settlement and release, which the respondent allegedly breached by initiating a claim with the CRA for insurable and pensionable earnings.

The Divisional Court found no palpable and overriding error in the trial judge's conclusion that there was no binding verbal agreement and release.

The appeal was dismissed.

The applicant, a lawyer facing misconduct allegations, applied for judicial review of a Law Society Hearing Panel's interlocutory decision dismissing his jurisdictional challenge.

The Law Society argued the application was premature.

The Divisional Court agreed, finding that the statutory appeal mechanism provided an adequate alternative remedy and that the applicant failed to establish exceptional circumstances justifying early intervention and fragmentation of the administrative process.

The application was quashed.

The applicant union sought judicial review of a labour arbitration award which found the arbitrator lacked jurisdiction to hear grievances regarding the hospital's pension contribution deductions.

The arbitrator had concluded that the dispute fell within the exclusive jurisdiction of the pension plan administrator, not the collective agreement.

The Divisional Court applied the reasonableness standard of review and found the arbitrator's decision was justified, transparent, and intelligible, noting the arbitrator properly considered the collective agreement, agreed facts, and relevant jurisprudence including the Weber essential character test.

The application for judicial review was dismissed.

Following an eight‑day civil trial in which the defendants were wholly successful, the court addressed costs.

The plaintiffs argued that costs should not follow the event because the litigation was pursued in the public interest and they were allegedly impecunious.

The court considered Rule 57 of the Rules of Civil Procedure, including proportionality, the circumstances of the dispute, the parties’ reasonable expectations, and the existence of settlement offers.

While acknowledging potential financial hardship and the plaintiffs’ stated public interest motivations, the court found that the defendants were entitled to recover costs.

Partial indemnity costs were awarded in a reduced amount, payable jointly by the unsuccessful plaintiffs.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision certifying a union as the exclusive bargaining agent for a construction industry bargaining unit.

The core issue was whether two employees performed construction industry work on the application date.

The Divisional Court found the Board's conclusion that disconnecting a pump for off-site repair constituted construction work 'at the site' to be unreasonable.

However, the Court upheld the Board's finding that replacing a thermal sensor constituted repair work, as it was a reasonable, fact-driven conclusion owed deference.

Consequently, the application for judicial review was dismissed.

The applicant applied for a school purposes bus licence.

The Ministry of Transportation deferred the decision until the applicant's outstanding criminal charges were resolved.

The applicant sought judicial review to overturn the deferral or compel a decision.

The Divisional Court found the application was not premature but held that the Minister's decision to defer was reasonable given the safety concerns arising from the outstanding charges, which included possession of a switchblade and possession of controlled drugs for the purpose of trafficking.

The application for judicial review was dismissed.

The appellant mother appealed a summary judgment order making her daughter a Crown ward without access.

She argued the motion judge erred in denying her an adjournment to retain new counsel and present additional evidence, and in granting the order on the record before him.

The Divisional Court admitted fresh evidence regarding a new parenting assessment but found it did not raise a genuine issue requiring a trial.

The court concluded the motion judge made no errors in denying the adjournment or in finding that Crown wardship without access was in the child's best interests.

The appeal was dismissed.

The appellant appealed a decision of the Landlord and Tenant Board, which found that a tenancy was provided as part of an employment compensation package and ended when the employment relationship ended.

The Divisional Court dismissed the appeal, holding that the Board's findings of fact were reasonable and within its jurisdiction, and that no error of law was demonstrated.

The court also declined to stay the eviction order, noting that an application for a stay requires proper materials addressing the test for injunctive relief.

The appellants, former students of Grenville Christian College, appealed a decision refusing to certify their class action for institutional abuse.

The motions judge had found that all certification criteria were met except for the preferable procedure, concluding that individual issues would overwhelm common ones.

The Divisional Court allowed the appeal, finding the motions judge made a palpable and overriding error by failing to properly analyze the access to justice barrier and by incorrectly assuming common issues would need to be relitigated.

The Court certified the class action and awarded costs to the appellants.

The landlord defendants appealed an order certifying a class action against them founded on common law negligence following a series of devastating propane explosions.

The appellants argued that as landlords, they owed no duty of care to third parties in the surrounding residential neighbourhood.

The Divisional Court dismissed the appeal, finding it was not plain and obvious that the landlords had no obligation to act, given allegations that they knew of the highly dangerous propane business and the foreseeable risk of catastrophic harm to nearby residents.

The Divisional Court heard three appeals from an Environmental Review Tribunal decision regarding a Renewable Energy Approval for a wind turbine project at Ostrander Point.

The Tribunal had revoked the approval, finding the project would cause serious and irreversible harm to Blanding's turtles, but dismissed appeals regarding harm to birds, alvar, and human health.

The Court allowed the appeal by the project developer and the Ministry of the Environment, finding the Tribunal's decision on Blanding's turtles was unreasonable as it lacked evidence on population size, failed to properly consider the developer's Endangered Species Act permit, and breached procedural fairness in determining the remedy.

The Court dismissed the cross-appeals regarding birds, alvar, and human health, finding the Tribunal's conclusions on those issues were reasonable.