Lee K. Ferrier

The Ministry of Natural Resources and the Regional Municipality of Halton appealed an order of the Ontario Municipal Board granting a $60,000 costs premium to the respondent.

The Board had relied on a Court of Appeal decision that was subsequently overturned by the Supreme Court of Canada, which held that a risk premium cannot be exacted against an unsuccessful party.

The Divisional Court found that the Board's rules focus on the conduct of a party, not the result achieved or the risk assumed by counsel.

The appeal was allowed and the costs premium was set aside.

The appellant appealed a Master's decision dismissing his motions to set aside the Registrar's dismissal of two actions for delay.

The Master had held she had no discretion to extend the time for bringing the motions and that the expiry of the limitation period created deemed prejudice.

The Divisional Court allowed the appeal, finding the Master erred in law by ignoring the overarching discretion in Rule 2.03 and by presuming prejudice solely from the expiry of the limitation period when the respondents had early notice of the claims.

The dismissal order for the second action was set aside.

The defendants sought leave to appeal an order certifying a class action regarding a defective medical product.

The defendants argued that the pleadings did not satisfy section 5(1)(a) of the Class Proceedings Act and that the litigation plan improperly provided for a reference to determine individual issues under section 25.

The Divisional Court denied leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the certification judge's decision, and emphasizing the deference owed to judges managing class proceedings.

The applicant sought judicial review of a decision by the Ontario Labour Relations Board.

The Board had dismissed ten applications for certification by the respondent union, finding it was not a construction industry trade union under s. 126(1) of the Labour Relations Act.

The Board also made obiter comments regarding s. 15 of the Act.

Because the applicant was successful before the Board in having the certification applications dismissed, the Divisional Court found the application for judicial review to be moot.

Applying the Borowski factors, the Court declined to hear the application, noting there is no public interest in reviewing obiter comments that did not form the ratio of the Board's decision.

The application was dismissed with costs.

The applicants sought judicial review of a decision by the Director to place a hold on an approval process for an international adoption.

The Divisional Court granted the application, quashed the Director's decision, and ordered the Director to notify the relevant authorities, including the China Centre of Adoption Affairs and the Canadian Embassy, that the temporary hold was no longer in effect and that the approval of the proposed adoption was in full force and effect.

The appellant appealed an order directing the sale of a co-owned property and requiring him to vacate the premises prior to the sale.

The Divisional Court upheld the order directing the sale on the open market, finding no authority to deny a co-owner the right to market exposure.

However, the court varied the order to allow the appellant to remain in possession until closing, noting the applications judge failed to consider the hardship of immediate eviction, the impracticalities of selling a vacant house, and the appellant's willingness to maintain mortgage and expense payments.

The appeal was allowed in part.

The applicant sought a stay of ongoing Ontario Securities Commission (OSC) proceedings pending an application for judicial review, alleging bias based on public comments made by the OSC Chair.

The OSC brought a cross-motion to quash the judicial review application for prematurity.

The single judge of the Divisional Court dismissed the motion to quash, holding that prematurity should be decided by the full panel.

The judge also dismissed the motion for a stay, finding no exceptional circumstances to justify departing from the general rule that tribunal proceedings should be completed before judicial review is entertained.

The moving party brought a motion before the Divisional Court.

The responding party appeared one hour late.

Due to the late appearance and the absence of a court reporter, the court adjourned the matter to a date to be fixed by the Registrar.

The applicant school board sought judicial review of a labour arbitrator's decision.

The arbitrator had found that the grievor committed serious misconduct but revoked all discipline, including a transfer, because an initial reprimand was given without union representation.

The Divisional Court applied the reasonableness standard of review and held that while the arbitrator reasonably found a breach of the representation clause, automatically revoking the transfer was unreasonable given the irrevocable breakdown of the working relationship.

The court quashed the revocation of the transfer but upheld the revocation of the suspension.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision declaring he had no right to sue his employer, Ontario Hydro, for injuries allegedly sustained in a nuclear accident.

The applicant argued that the federal Nuclear Liability Act created a statutory tort that ousted the provincial Workers' Compensation Act.

The Divisional Court dismissed the application, holding that the Nuclear Liability Act does not create a federal statutory tort and that federal jurisdiction over nuclear power does not oust provincial jurisdiction over employees' compensation schemes.

The court confirmed that the applicant must pursue his remedies under the provincial workers' compensation scheme.

The applicant, a pharmaceutical manufacturer, sought judicial review of a recommendation by the Canadian Agency for Drugs and Technologies in Health (CADTH).

The applicant alleged that CADTH breached its duty of procedural fairness by failing to publish draft rules for a pilot project and by allowing a competitor to participate, thereby giving the competitor an unfair market advantage.

The Divisional Court dismissed the application, finding that CADTH had widely communicated the existence of the pilot project to the industry and that any manufacturer, including the applicant, could have volunteered to participate.

The court concluded that CADTH's conduct was transparent, even-handed, and reasonable, and that there was no breach of the applicant's legitimate expectations.

The defendants appealed a trial decision finding them liable for breach of contract regarding missing window screens in a real estate transaction.

The Divisional Court dismissed the appeal, holding that the defendants could not evade performance based on a unilateral mistake of which the plaintiffs were ignorant.

The court also upheld the dismissal of the claim against the real estate agent, finding the agent met the standard of care by reviewing the chattels list with the defendants.

Following an appeal in an estate dispute, the parties made written submissions on costs.

The court found that the appellant, Jimmy, achieved only a modest advantage over the trial decision and that he and the executor had unreasonably rejected a reasonable settlement offer made by the respondent, Donna, in 2003.

Consequently, Jimmy was denied costs despite incurring $58,000 in legal fees.

Donna, having been substantially successful, was awarded $15,000 in costs payable by Jimmy, to be set off against his share of the mortgage proceeds.

The executor was awarded $4,000 out of the estate for the appeal.

The applicant sought judicial review of an arbitrator's preliminary ruling that section 54 of the Labour Relations Act applies to all collective agreements in Ontario.

The arbitrator had not yet decided the ultimate question of whether mandatory retirement prior to amendments to the Human Rights Code was unlawful.

The Divisional Court quashed the application as premature, emphasizing that courts should not entertain applications prior to the completion of proceedings to avoid fragmented proceedings and unnecessary delay.

The arbitrator must rule on all issues before judicial review is appropriate.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision refusing to extend the time to review an Employment Standards Officer's order to pay.

The applicant's solicitor had inadvertently missed the 30-day deadline, initiating the request six months late.

The Divisional Court dismissed the application, finding the Board's discretionary decision reasonable given the statutory purpose of prompt resolution and the presumed prejudice of a six-month delay.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's order requiring the insurer to pay the claimant approximately $4,350 for attendant care and housekeeping services.

The insurer argued the arbitrator erred by relying on an excerpt from a medical report and by judging the claimant's credibility solely on her demeanour.

The Divisional Court dismissed the application, finding that the excerpt was properly in evidence as part of a larger report filed by the insurer, and that the arbitrator reasonably weighed credibility in the context of the evidence as a whole.

The standard of review applied was reasonableness.

The applicants sought judicial review of an Ontario Racing Commission (ORC) decision suspending them for one year and imposing fines for 'tubing' horses prior to races.

The applicants argued they were denied natural justice because the ORC relied on general rules rather than a specific prohibition against tubing, and that the panel erred in excluding photographic evidence.

The Divisional Court applied the reasonableness standard, finding ample evidence that tubing was a known prohibited practice in the industry.

Although the panel erred in excluding the photographs, it did not cause a meaningful injustice.

The application was dismissed and the penalties upheld.

The appellant appealed an order that dismissed his claim for reimbursement of child support overpayments.

A previous final judgment had already ordered the respondent to pay the appellant for the overpayments.

The Divisional Court held that the motion judge was functus officio and lacked jurisdiction to reconsider the final judgment.

The appeal was allowed, the subsequent order was set aside, and the respondent was permitted to set off outstanding costs awards against the judgment debt.

The applicant's application for judicial review of a human rights commission decision was dismissed.

The respondents sought costs of $5,000 each.

The applicant argued she should be relieved of paying costs because her case raised public policy issues and she was impecunious.

The Divisional Court declined to award costs against the applicant, finding it appropriate to relieve her of the obligation due to the public interest issues raised and her difficult financial circumstances.

The respondent was previously found guilty of civil and criminal contempt for his open, continuous, and flagrant refusal to obey a court order to testify at the Cornwall Public Inquiry.

Having served a six-month sentence for civil contempt, the court convened to determine the sentence for criminal contempt.

Applying the totality principle and considering mitigating factors such as pre-sentence custody and harsh incarceration conditions, the court sentenced the respondent to a further 30 days of incarceration, to be served consecutively without remission or parole.