Michael R. Dambrot

The appellants, having been successful in their appeal which struck the respondent's counterclaim and third-party claim, sought their costs on a partial indemnity basis.

The court fixed the costs for both appellants but declined to include any fees or disbursements related to a voluntary mediation.

The court held that voluntary mediation is not a step authorized by the Rules of Civil Procedure, and as a matter of policy, the costs of voluntary mediation should be borne equally by the parties to encourage settlement efforts without fear of increased costs if unsuccessful.

The applicant union sought judicial review of an arbitration award dismissing a grievance for severance pay for employees following a plant closure.

The arbitrator ruled that the employees were not eligible for severance pay under the Employment Standards Act, 2000 because they received pension benefits that fell within the statutory exemption.

The Divisional Court held that the arbitrator's interpretation of the legislation, including her consideration of the Pension Benefits Act and use of commuted values to compare pension benefits, was reasonable.

The application for judicial review was dismissed.

Following the dismissal of the appellant's appeal, the successful respondent sought costs of $35,000 on a partial indemnity basis, which included costs thrown away for two prior adjournments.

The appellant argued the amount was excessive and suggested an award between $18,000 and $22,000.

The Divisional Court found the claimed costs thrown away to be excessive but agreed the respondent was entitled to costs for the adjournments.

The court fixed costs at $30,000 all-inclusive, to be set-off against the sum owed by the respondent to the appellant under an Ontario Municipal Board award.

The appellants appealed an order dismissing their motions under Rules 20 and 21 to strike the respondent's claims for constructive dismissal and related torts as statute-barred.

The motion judge had found that the claims could have been discovered before the respondent resigned, potentially triggering the six-year limitation period under the transitional provisions of the Limitations Act, 2002.

The Divisional Court allowed the appeal, holding that a cause of action for constructive dismissal arises only when the employee resigns.

As the resignation occurred in May 2004, the two-year limitation period applied and the claims were statute-barred.

The court also held that the motion judge erred in linking the Rule 20 and Rule 21 motions, and found no triable issue regarding promissory estoppel or acknowledgment of liability.

The applicant, a chartered accountant, sought judicial review of a decision by the Institute of Chartered Accountants of Ontario's Discipline Committee finding him guilty of professional misconduct for failing to cooperate with an investigation.

The investigation stemmed from a complaint that the applicant helped a client conceal income in a matrimonial dispute.

The applicant argued that the investigating committee breached its duty of fairness by expanding the investigation without notice and breached its disclosure obligations by not providing the preliminary investigative report.

The Divisional Court dismissed the application, finding no evidence that the investigation had expanded and holding that there was no obligation to disclose the preliminary report during an ongoing investigation.

The plaintiffs brought a motion for leave to appeal a certification decision that refused to certify class members' entitlement to punitive damages as a common issue and bifurcated common issues relating to the quantification and apportionment of waiver of tort damages.

The Divisional Court found that there were conflicting decisions on both issues and good reason to doubt the correctness of the motion judge's order.

Leave to appeal was granted on both issues and the hearing of the appeal was expedited.

The plaintiffs brought a motion for leave to appeal an order bifurcating common issues relating to the quantification and apportionment of any accounting or disgorgement for a claim based on waiver of tort from the other common issues in a class action concerning allegedly defective cardiac defibrillators.

The court granted leave to appeal, finding conflicting decisions on the issue of bifurcation and good reason to doubt the correctness of the order, noting the matter is of sufficient importance to warrant appellate review.

The defendants sought leave to appeal an order certifying a class action and an order refusing to strike the claim against the defendant law firm.

The underlying action involved a charitable gift program that was disallowed by the Canada Revenue Agency, leading to claims of breach of contract and negligence against the promoters and the law firm that provided tax opinions.

The Divisional Court dismissed the motions for leave to appeal, finding no good reason to doubt the correctness of the motion judge's conclusions that the common issues requirement was met and that the pleadings disclosed a tenable cause of action in negligence against the law firm.

The applicant sought judicial review of an arbitration award that allowed a union grievance regarding balance and deposit time for collectors on overtime shifts.

The applicant argued the arbitrator breached natural justice and reached an unreasonable decision by relying on a without-prejudice settlement.

The Divisional Court found that while the arbitrator erred in admitting the settlement, this did not amount to a denial of natural justice.

The court concluded the arbitrator's decision was reasonable as it was independently supported by uncontradicted evidence and the wording of a prior agreement.

The appellant appealed an Ontario Municipal Board decision determining compensation for the City of Toronto's expropriation of subsurface easements for existing pipelines.

The appellant argued the Board erred by denying damages for business losses caused by delay and by failing to award interest and costs.

The appellant also sought to adduce fresh evidence to increase its claim for injurious affection.

The Divisional Court dismissed the appeal, finding the Board's conclusion that there was no causal nexus between the expropriation and the business losses was reasonable.

The Court also refused to admit the fresh evidence, as it could have been adduced earlier and would not have affected the result.

The defendant sought leave to appeal a decision refusing to set aside a certificate of pending litigation (CPL) in favour of the plaintiff.

The motion judge had found it arguable that the plaintiff, a limited partner, had a reasonable claim to an interest in the property through a constructive trust.

The Divisional Court found that while there was good reason to doubt the correctness of the motion judge's decision, the proposed appeal did not involve matters of such importance to warrant granting leave, as the motion judge had merely found the legal propositions to be arguable rather than making new law.

Leave to appeal was refused.

The appellant appealed an order dismissing her motion to amend a judgment that approved an infant settlement, and sought leave to extend the time to appeal the original judgment.

The Divisional Court quashed the appeals, finding it lacked jurisdiction under section 19 of the Courts of Justice Act because the orders appealed from did not require payment of any amount by the appellant, and no leave to appeal had been granted.

The landlord appealed a decision of the Landlord and Tenant Board granting the tenant a rent abatement for water damage extending back more than one year prior to the tenant's application.

The Divisional Court allowed the appeal, holding that under s. 29(2) and s. 30(1) of the Residential Tenancies Act, 2006, the Board only has jurisdiction to award a rent abatement for breaches occurring within the one-year limitation period preceding the application.

The appellant appealed a decision of the Social Benefits Tribunal which upheld the Director's finding that he was not a 'person with a disability' under the Ontario Disability Support Program Act, 1997.

The Tribunal found the appellant had a substantial impairment due to back pain but no substantial restriction in activities of daily living.

The Divisional Court dismissed the appeal, finding the standard of review was correctness for questions of law, the Tribunal did not apply an incorrect test, the evidentiary findings were open to the Tribunal, and the reasons were adequate.

The applicant sought judicial review of two Ontario Labour Relations Board decisions and requested to set aside a Memorandum of Settlement reached at the Grievance Settlement Board.

The applicant claimed he signed the settlement while impaired by medication.

The Divisional Court dismissed the application, finding no medical evidence of impairment and noting it lacked jurisdiction to review a settlement agreement.

Furthermore, the court held that the application was barred by inordinate and unexplained delay, as the applicant waited eleven months to commence the application and another seven months to perfect it.

The appellants, a family with seven children living in subsidized co-operative housing, appealed an order terminating their membership and issuing a writ of possession due to late housing charge payments.

The application judge had declined to exercise his discretion to grant relief from eviction under s. 171.21 of the Co-operative Corporations Act, finding no 'change in circumstances' since the co-operative board's decision.

The Divisional Court allowed the appeal, holding that the application judge erred in principle by requiring a change in circumstances rather than considering all circumstances, including the devastating impact of eviction on the children.

The court granted relief from eviction subject to strict conditions for future payments.

At the outset of the appeal, the appellant sought leave to file an Amended Notice of Appeal and adduce fresh evidence.

The court refused leave to add the first proposed ground of appeal regarding an increase in damages for injurious affection, and consequently refused the fresh evidence in support of it.

The court reserved its decision on the second proposed ground and its associated fresh evidence until after hearing argument on the appeal itself, as it was inextricably interwoven with an existing ground of appeal.

The applicant school board sought judicial review of a decision by the Child and Family Services Review Board that quashed the expulsion of a student for off-school marijuana use.

The Tribunal had found insufficient evidence of a nexus between the student's off-school activities and the school climate.

The Divisional Court exercised its discretion to hear the moot application, determined the standard of review was reasonableness, and upheld the Tribunal's decision, finding it reasonable and correct in its interpretation of the Education Act.

The landlord appealed a decision of the Landlord and Tenant Board, raising issues regarding whether an occupant was a tenant and whether there was a deemed assignment of the tenancy.

The Divisional Court dismissed the appeal, finding that the determination of whether the occupant was a tenant was a question of mixed fact and law not subject to appeal under s. 210 of the Residential Tenancies Act.

Furthermore, the Board's finding that the landlord failed to apply for eviction within 60 days of discovering the unauthorized occupancy, resulting in a deemed assignment under s. 104(4), was a finding of fact that could not be challenged.

Costs of $750 were awarded to the respondent.

The appellant appealed a decision of the Social Benefits Tribunal which held that the definition of disability under the Ontario Disability Support Program Act (ODSPA) was not discriminatory and did not conflict with the Human Rights Code.

The appellant argued that because he met the broader definition of disability under the Code, denying him benefits under the narrower ODSPA definition was discriminatory.

The Divisional Court dismissed the appeal, finding that the ODSPA is a special program designed to ameliorate the conditions of a disadvantaged group under s. 14(1) of the Code.

The government is not required to extend benefits to every conceivable member of a broad class, and providing benefits to the most disadvantaged is not discriminatory.