Lee K. Ferrier

The College of Physicians and Surgeons of Ontario brought an application regarding an ongoing tribunal hearing involving the Sleep Disorders Centres.

The Divisional Court dismissed the application as premature, finding that no significant harm or breach of natural justice would occur by refusing to decide the issue, especially since the report in question had already been disclosed.

The Court concluded that all related issues should be determined by the tribunal based on a full and complete record.

The tenant appealed a decision of the Ontario Rental Housing Tribunal denying an abatement of rent for an allegedly illegal entry by the landlord.

The landlord had provided a notice of entry specifying a nine-hour window for a smoke detector inspection, and the Tribunal found the tenant had consented to the entry.

The Divisional Court allowed the appeal, holding that a common sense reading of s. 21(2) of the Tenant Protection Act requires the notice to specify a time of entry, not a nine-hour period.

The Court further held that the notice provisions cannot be waived by consent.

The tenant was awarded a $1,000 rent abatement and costs.

The defendant insurer appealed an order requiring it to produce its entire claims file from a prior, settled coverage action in a subsequent bad faith action brought by the plaintiff.

The motions judge had found that the defendant impliedly waived privilege by pleading good faith.

The Divisional Court allowed the appeal, applying the Supreme Court of Canada's decision in Blank v. Canada.

The Court held that litigation privilege continues in closely related subsequent litigation and that pleading good faith does not constitute a waiver.

The blanket production order was set aside, and the defendant was ordered to deliver an Affidavit of Documents individually listing the documents over which privilege is claimed.

The applicant housing cooperative brought a motion to lift the stay of enforcement of a Writ of Possession pending the respondent's appeal of the eviction order.

The Divisional Court dismissed the motion, finding no compelling evidence of a risk of serious physical harm to the cooperative or its residents that would constitute irreparable harm.

The court also found that the balance of convenience and prejudice favoured the respondent, as lifting the stay would require her to vacate her home of 25 years and potentially deprive her of statutory protections under the Co-operative Corporations Act if her appeal succeeded.

The plaintiff and defendants both sought leave to appeal an interlocutory order that transferred the proceeding from Toronto to Windsor on the condition that the defendants pay the plaintiff's travel and accommodation expenses in any event of the cause.

The Divisional Court granted leave to appeal to both parties, finding good reason to doubt the correctness of imposing such a financial condition on a change of venue order.

Leave was also granted on the issue of costs, as the motion judge had not afforded the parties an opportunity to make submissions on costs.

The Writers Guild of Canada brought an application for judicial review of a preliminary arbitration award.

The arbitrator had concluded he had jurisdiction to determine whether a grievor was an employee/dependent contractor or an independent contractor under the Status of the Artist Act.

The applicant argued the Canadian Artists and Producers Professional Relations Tribunal had exclusive jurisdiction over this issue.

The Divisional Court dismissed the application, finding the arbitrator correctly interpreted the legislation and had jurisdiction to determine the grievor's employment status as a preliminary issue of arbitrability.

The applicant employer sought judicial review of an arbitrator's award requiring it to pay the Ontario Health Premium on behalf of its employees under the collective agreement.

The Divisional Court held that the standard of review for an arbitrator interpreting a collective agreement against a statutory backdrop is patent unreasonableness.

The Court found that the arbitrator's conclusion—that the reintroduction of individual health premiums revived the employer's obligation to pay 100% of the employees' costs for OHIP—was not patently unreasonable.

The application for judicial review was dismissed.

The applicant sought judicial review of a decision by the Ontario Civilian Commission on Police Services, which confirmed the dismissal of his complaint against a police officer.

The complaint arose from an incident where police responded to a landlord-tenant dispute involving the applicant, who is elderly and disabled.

The Divisional Court applied the patent unreasonableness standard of review and found that the Commission's conclusion—that there was no reasonable basis in the evidence to proceed to a hearing for police misconduct—was not patently unreasonable.

The application for judicial review was dismissed.

The City of London appealed a decision granting the respondents' application to overturn the Chief Building Official's (CBO) refusal to issue unconditional building permits.

The CBO had issued permits conditional on the repair of a defective gabion wall on the property, which was subject to a site plan agreement.

The Divisional Court allowed the appeal, finding that the trial judge erred in concluding the CBO acted outside his statutory authority.

The Court held that site plan approval constitutes 'applicable law' under the Building Code Act, and the CBO lawfully imposed conditions bearing a logical nexus to the property's use and the ongoing maintenance obligations in the site plan agreement.

The respondents in an application for judicial review brought a motion to compel the applicant's affiants to re-attend cross-examinations to answer questions regarding their personal financial positions.

The applicant employer had sought judicial review of an Employment Standards Officer's order to pay wages, claiming impecuniosity to avoid the statutory requirement to pay the order amount into trust.

The court ordered the affiants to answer the questions so the judicial review panel would have a complete record to determine relevance.

The court also ordered the applicant to serve the affected employees with the notice of application.

The applicants sought judicial review of a decision by the General Manager of OHIP refusing to pay medical accounts submitted more than six months after services were rendered.

The applicants argued that the delay, caused by the incompetence of their office manager, constituted 'extenuating circumstances' under the Health Insurance Act.

The Divisional Court applied the reasonableness standard of review and upheld the General Manager's decision, finding it reasonable to distinguish between catastrophic events beyond a physician's control and administrative or operational errors within their control.

Deloitte & Touche LLP appealed an order of the Ontario Securities Commission authorizing the disclosure of written answers provided by Deloitte during an investigation to the respondents in a related enforcement proceeding.

Deloitte argued the information was not relevant, that disclosure was not in the public interest, and that the information was privileged.

The Divisional Court dismissed the appeal, finding the Commission reasonably concluded the information was relevant to the respondents' ability to make full answer and defence, that the public interest favoured disclosure, and that the information was not privileged because it did not originate in confidence.

The appellant, a staff sergeant, appealed a decision of the Ontario Civilian Commission on Police Services upholding his conviction for discreditable conduct.

The charge arose from a meeting with a constable who had previously filed a racial harassment complaint against him.

The hearing officer found the appellant's conduct constituted a reprisal based on the constable's subjective perception, despite accepting the appellant's evidence denying any reprisal intent.

The Divisional Court allowed the appeal, finding the hearing officer and Commission erred by focusing on the constable's subjective perception rather than the appellant's intent, and by failing to consider whether the conduct was likely to bring discredit upon the police force.

The conviction was set aside.

The applicant sought judicial review of a Social Benefits Tribunal decision denying him disability benefits under the Ontario Disability Support Program.

The applicant argued the Tribunal erred in law by overlooking medical evidence and his inability to function in the workplace.

The Divisional Court dismissed the application, finding the Tribunal correctly interpreted the legislation, properly considered the medical evidence, and made credibility findings that supported its conclusion that the applicant did not meet the statutory definition of a person with a disability.

The plaintiff applied for leave to appeal a decision setting aside a default judgment and a vesting order.

The plaintiff argued there was a denial of procedural fairness because the motion judge did not hear oral argument on setting aside the default judgment, and that the decision conflicted with established case law regarding vesting orders under the Land Titles Act.

The Divisional Court denied leave, finding no breach of fundamental fairness given the full written arguments submitted, no good reason to doubt the correctness of the decision, and no conflicting decision as the plaintiff was not an innocent third party.

The appellant real estate agency appealed the dismissal of its claim for commissions against the respondents.

The trial judge found the listing agreement invalid because the agent failed to leave a copy with the vendor, as required by section 35 of the Business Brokers Act.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's factual findings.

However, the Court noted the trial judge erred in concluding that failure to post the listing on MLS within two days invalidated the agreement, and that agents are required to verify a vendor's authority or sole ownership before signing a listing agreement.

The applicant sought judicial review of an Ontario Labour Relations Board decision assigning the teaching of the Life and Learning Skills program for students aged 14 and older in secondary schools to members of the Ontario Secondary School Teachers' Federation.

The applicant argued the work should belong to elementary teachers because the academic content was at the primary level.

The Divisional Court dismissed the application, finding the OLRB correctly interpreted the Education Act by considering the physical location, educational purpose, and body of pupils, and reasonably applied labour relations principles to conclude the work belonged to secondary school teachers.

The applicant employer sought judicial review of a Pay Equity Hearings Tribunal decision that allowed a former employee to pursue a pay equity complaint despite having signed a full and final release upon termination.

The Divisional Court (majority) quashed the Tribunal's decision, holding that the release was a binding contract that barred the complaint, and the Tribunal's interpretation to the contrary was incorrect.

A dissenting opinion would have dismissed the application, emphasizing the systemic and proactive nature of the Pay Equity Act and the Tribunal's specialized jurisdiction.

The applicant sought judicial review of the Ministry of Transportation's decision to deny him a religious exemption from the requirement to have a digital photograph on his driver's licence.

He argued the requirement violated his freedom of religion under s. 2(a) of the Charter, citing beliefs based on the Book of Revelations and the Second Commandment.

The Divisional Court dismissed the application, finding that the applicant failed to establish that his objection was based on a sincere religious belief, noting inconsistencies in his practices and evidence that his true concerns were secular privacy issues.

The appellants appealed a Case Management Master's decision dismissing their $4.6 million solicitor negligence action for repeated non-compliance with court orders.

The appellants had failed to comply with four orders requiring them to answer undertakings and produce documents, including a final 'last chance' order.

The Divisional Court dismissed the appeal, holding that the Master correctly exercised her discretion to dismiss the action under the Rules of Civil Procedure to enforce compliance and further the goals of case management.