Lee K. Ferrier

The appellants appealed an order dismissing their motion to amend their statement of claim to add a conspiracy claim.

The motion to amend was served before the expiry of the limitation period but was not heard until after it had expired due to inordinate delay.

The Divisional Court allowed the appeal, holding that the parties' rights crystallized on the date the motion was served.

Since the motion was served within the limitation period and the proposed amended pleading was sufficient in law, the amendment was permitted despite the delay.

The appellants, a law firm and lawyer, appealed the dismissal of their motion to strike a defamation claim.

The respondent had sued the appellants for defamation based on a letter and draft statement of claim sent to a town planner the day before the claim was officially issued.

The motion judge held that absolute privilege did not apply because the communication contained gratuitously defamatory material intended to induce false testimony.

The Divisional Court allowed the appeal, holding that absolute privilege applies to communications made preparatory to and with a view to judicial proceedings, regardless of malice or falsity.

The court found the communication was made on an occasion of absolute privilege and struck the statement of claim.

The applicants sought judicial review of a decision by the Ontario Workplace Safety and Insurance Tribunal regarding permanent disability entitlements under the Workers' Compensation Act.

The applicants argued that the Tribunal erred in capping the maximum permanent disability supplement at the amount of a full old age security pension under section 147(8), asserting that the calculation formulas in sections 147(9) and (10) should prevail.

The Divisional Court applied a reasonableness standard of review and dismissed the application, finding that the Tribunal's interpretation accorded with the plain language of the statute and gave meaning to all provisions.

The applicant sought judicial review of a decision by the Workplace Safety and Insurance Appeals Tribunal that reduced his temporary partial disability benefits.

The Tribunal had applied a policy requiring partially disabled workers to engage in a self-directed vocational rehabilitation program to demonstrate reasonable efforts to return to work.

The Divisional Court applied the reasonableness standard of review and held that the Tribunal did not exceed its jurisdiction in interpreting the legislation.

The court found the Tribunal's decision to reduce benefits due to inadequate effort to seek employment was reasonable and dismissed the application.

The applicants sought judicial review of an interlocutory order made by the Human Rights Tribunal of Ontario in a complaint that had been ongoing since 2003.

The Divisional Court quashed the application, declining to depart from the general rule against hearing judicial reviews of interlocutory orders, despite the troubling history and delay.

The appellants appealed a decision of the Ontario Municipal Board (OMB) refusing to order a joint board under the Consolidated Hearings Act (CHA) for a proposed golf course and residential development on the Oak Ridges Moraine.

The Divisional Court held that the OMB correctly determined it lacked jurisdiction to order a joint board because the potential hearings under the Ontario Water Resources Act were exempt under the applicable regulations.

Furthermore, the Court found that the OMB had the discretion under s. 24(2) of the CHA to refuse to order a joint board and made no error in exercising that discretion.

The appeal was dismissed.

The applicant police officers sought judicial review of two interlocutory decisions of the Human Rights Tribunal of Ontario ordering the production of records concerning prior complaints against them.

The Divisional Court quashed the application for prematurity, finding no exceptional or extraordinary circumstances to justify fragmenting the administrative proceedings before the Tribunal.

The appellants appealed a trial decision granting judgment of $13,413.04 to the respondent, arguing the trial judge misapprehended evidence and provided inadequate reasons.

The Divisional Court dismissed the appeal, finding that the trial judge's findings of fact were reasonable, supported by the evidence, and entitled to deference absent a palpable and overriding error.

The court also held that the trial judge's reasons adequately explained his conclusions and provided a sufficient basis for appellate review.

The plaintiffs sued their insurer for terminating statutory accident benefits based on reports from health care professionals retained by the insurer under s. 42 of the Statutory Accident Benefits Schedule.

On discovery, the plaintiffs sought to ask questions that amounted to cross-examining these experts.

The motion judge held that the experts were not 'experts' within the meaning of Rule 31.06(3) of the Rules of Civil Procedure, and thus the prohibition against cross-examination did not apply.

The Divisional Court allowed the insurer's appeal, holding that the clear wording of Rule 31.06(3) covers experts engaged by a party for a purpose other than litigation, including s. 42 assessors.

The appellant appealed a costs order of the Discipline Committee and brought a motion to admit fresh evidence.

The Divisional Court dismissed the motion, finding the appellant was attempting an impermissible collateral attack on the underlying merits decision, which had already been upheld on appeal.

Furthermore, the proposed fresh evidence did not meet the test for admission as it could not reasonably be expected to have affected the result.

The appellant chiropractor appealed a $128,000 costs order made against him by the Discipline Committee of the College of Chiropractors following findings of professional misconduct.

He argued the Committee lacked jurisdiction under the Statutory Powers Procedure Act and that the quantum was unreasonable.

The Divisional Court dismissed the appeal, finding that the Health Professions Procedural Code's costs provisions prevailed and that the quantum was reasonable given the length and complexity of the hearing, the serious nature of the misconduct, and the appellant's refusal to admit wrongdoing.

The respondent, Anna Mauro, brought a motion for costs following an abandoned judicial review application and a previously dismissed stay motion.

The Divisional Court awarded the respondent $2,500 in costs for the stay motion, noting that while she was successful, the issues were not complicated and she had filed irrelevant material.

The court declined to award costs for the abandoned application, as the matter was moot and no steps were required by the respondent.

The appellant collection agency appealed a jury's assessment of $40,000 in general damages for slander.

The appellant's employee falsely represented himself as a lawyer to the respondent's employer, claiming a garnishment order had been issued against her.

The appellant argued the damages were patently excessive and should be reduced to $10,000.

The Divisional Court dismissed the appeal, finding that while the award was on the high side, it was not anomalous or wholly out of proportion, given the malicious nature of the call and the respondent's position handling cash at a bank.

The appellant appealed a decision of the Human Rights Tribunal regarding the quantum of general damages and lost wages awarded for gender discrimination.

The Divisional Court determined that its jurisdiction was by way of judicial review and the standard of review was patent unreasonableness.

The Court found the Tribunal's decision on remedy was reasonable and dismissed the appeal, awarding $1,000 in costs to the respondent casino.

The appellants appealed a trial judge's finding that they owed the respondent commission under an oral contract for the sale of stone.

The appellants argued the trial judge ignored evidence that not all the stone had been sold, which was the triggering term for the commission.

The Divisional Court dismissed the appeal, finding no palpable and overriding error.

The trial judge's conclusion was supported by the respondent's evidence, which she found credible, and an admission by the appellants that commission was owed.

The City of Toronto appealed a decision of the Ontario Municipal Board that permitted the respondent to convert a 20-storey affordable rental apartment building into a condominium.

The Divisional Court found that the Board applied the wrong legal test by merely 'having regard to' the Provincial Policy Statement 2005 instead of ensuring its decision was 'consistent with' it, as required by the Planning Act.

Furthermore, the Board failed to properly consider the specific mandatory criteria in the City's Official Plan regarding condominium conversions and the health of the rental housing market.

The appeal was allowed, the Board's decision was set aside, and the matter was remitted for a new hearing.

The applicant sought judicial review to quash a municipality's decision awarding a construction contract to a third party, alleging breaches of procedural fairness and natural justice.

The Divisional Court dismissed the application, finding that the requested remedy of certiorari or mandamus was discretionary and inappropriate because the third party had already commenced work.

The court concluded that damages would be an adequate and preferable remedy for the applicant.

The applicant sought judicial review of an interlocutory order made by a Small Claims Court judge setting aside a default judgment.

The Divisional Court noted that while it has jurisdiction under the Judicial Review Procedures Act to review such decisions, it will generally decline to do so where the application is essentially an appeal of an interlocutory order, as the Courts of Justice Act does not permit appeals from interlocutory orders of the Small Claims Court.

The court found no reason to interfere, holding that the Small Claims Court judge acted within his jurisdiction.

The application for judicial review was dismissed.

The defendants appealed an order of the motion judge regarding the plaintiffs' failure to comply with discovery undertakings.

The Divisional Court found that the motion judge's order was vague and lacked reasons, and noted that the Rules of Civil Procedure do not allow a party to delay providing particulars until 90 days before trial.

As the plaintiffs had satisfied most undertakings after the appeal was perfected, the Court set aside the motion judge's order and directed the plaintiffs to particularize their future healthcare costs within 14 days, failing which the action could be struck from the trial list.

The applicants sought judicial review of a decision by the Director of Adoption Services to place their international adoption on hold.

The hold was initiated after the estranged sister of one of the applicants made historic sexual abuse allegations just days before the applicants were scheduled to travel to finalize the adoption.

The Director placed the hold and required a new home study without providing the applicants an opportunity to respond or detailing the allegations.

The Divisional Court granted the application, finding that the Director breached procedural fairness by failing to give the applicants a meaningful opportunity to respond.

The court also found the requirement for a further home study unreasonable given the unchallenged expert evidence refuting the risk.

The Director's decision was quashed and the original approval was reinstated.