Michael R. Dambrot

The moving party university brought a motion to set aside a decision of a single judge of the Divisional Court who refused to strike an affidavit filed by the responding party association on an application for judicial review of a labour arbitration award.

The arbitration upheld the termination of a professor for failing to grade students objectively.

The Divisional Court panel found that the motions judge erred in law by admitting the affidavit, as it did not meet the narrow Keeprite exception for admitting new evidence on judicial review.

The motion was granted and the affidavit was struck in its entirety.

The appellant lawyer brought a Small Claims Court action against a former client for unpaid legal fees based on a simple written retainer agreement setting an hourly rate.

The deputy judge stayed the action for want of jurisdiction, relying on binding precedent that the Small Claims Court cannot hear claims based on written fee agreements under the Solicitors Act.

On appeal, the Divisional Court held that a simple hourly retainer agreement does not constitute an extraordinary fee agreement under section 16(1) of the Solicitors Act, and therefore is not subject to the prohibition on actions in section 23.

The appeal was allowed and judgment was granted to the appellant.

The Canadian Doctors of Audiology Association brought a motion for leave to intervene in an appeal concerning a finding of professional misconduct against an audiologist for using the title 'Doctor'.

The proposed intervenor sought to support the appellant's constitutional challenge to s. 33 of the Regulated Health Professions Act, 1991.

The court dismissed the motion, finding that the application was brought very late, the proposed argument substantially echoed the appellant's argument, and the intervention would not make a useful and distinct contribution sufficient to justify disrupting the scheduled appeal.

The respondent children's aid society brought a motion to dismiss the parents' appeal of a Crown wardship order for delay.

The parents had failed to order transcripts or perfect their appeal within the required timelines under the Family Law Rules, instead engaging in numerous other unsuccessful legal proceedings.

The Divisional Court applied the factors for dismissing a child protection appeal for delay, finding that the parents had no prospect of ordering the transcripts, the delay prejudiced the children's need for permanency, and the appeal lacked merit.

The motion was granted and the appeal was dismissed.

The Director of the Ontario Racing Commission sought judicial review of an ORC Panel decision that reduced the penalties of four horse trainers whose horses tested positive for a controlled substance.

The trainers had been found guilty of an absolute liability offence but the Panel reduced their penalties to a nominal fine and no suspension, finding they had exercised due diligence by consulting veterinarians and following their advice.

The Divisional Court dismissed the application, holding that the Panel's decision to consider due diligence as a mitigating factor at the penalty stage was reasonable and entitled to deference.

The applicants brought a motion to extend the time to deliver a Notice of Appeal and for an interim order that the respondents pay $10 million US pending a reference hearing.

The court dismissed the motion to extend time, finding the applicants filed no evidence to satisfy the test for an extension.

The court also dismissed the request for an interim payment, noting that the applicant had previously sought the same relief multiple times, which had been dismissed as an abuse of process, and that the applicant was subject to an order requiring leave to bring such motions, which had not been obtained.

The appellants appealed a Master's order refusing to set aside a Registrar's order that dismissed their motor vehicle accident action for delay.

The action had been dismissed twice due to the appellants' former counsel's failure to advance the file.

The Divisional Court found no palpable and overriding error in the Master's application of the Reid factors, noting the appellants failed to adequately explain the delay and the respondents suffered prejudice.

The appeal was dismissed, and leave to appeal the Master's costs order was refused.

York University sought leave to appeal an order dismissing its motion to strike a former student's breach of contract claim.

The student alleged a breach of contract related to a course grade from 2006-2007, specifically the failure to return assignments and explain the grade.

The motion to strike was based on the claim being statute-barred and failing to disclose a reasonable cause of action within academic discretion.

The court granted leave to appeal, finding reason to doubt the correctness of the motions judge's decision on both the limitation period, particularly whether repeated requests for redress could perpetually extend it, and the sufficiency of the contractual pleadings to demonstrate the university acted beyond its academic discretion.

The applicant, an RCMP officer on long-term sick leave, sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB).

The HPARB had upheld a decision by the College of Physicians and Surgeons' Inquiries, Complaints and Reports Committee to take no further action on her complaint against an RCMP Occupational Health Services Officer.

The applicant alleged the physician arbitrarily changed her medical profile from employable with restrictions to unemployable without examining her.

The Divisional Court dismissed the application, finding the HPARB's conclusion that the physician performed a reasonable review of the medical information and exercised appropriate clinical judgment was reasonable.

The applicant municipality sought judicial review of two orders by an adjudicator of the Information and Privacy Commissioner requiring the disclosure of records relating to the municipality's IT system and service contracts.

The municipality had denied access to portions of the records, claiming various exemptions under the Municipal Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the application, finding that the adjudicator's decisions that the exemptions for third party information, advice and recommendations, security, and valuable government information did not apply were reasonable.

The appellant, the estate of Celina Carroll, appealed an interlocutory order dismissing its motion for summary judgment.

The central issue was whether the driver of the vehicle had express or implied consent to possess it at the time of the motor vehicle accident.

The Divisional Court held that while the driver's discovery transcript was admissible, the deceased owner's transcript was not admissible on the motion.

The court upheld the motion judge's finding that the issue of consent could not be determined on the record without a trial and dismissed the appeal.

The appellant lawyer appealed a decision of the Law Society Appeal Panel that dismissed his appeal of a penalty requiring him to surrender his licence for participating in mortgage frauds.

On appeal to the Divisional Court, the appellant argued the Appeal Panel should have adjudicated a human rights issue concerning his alleged disability, which was raised for the first time before the Appeal Panel.

The Divisional Court dismissed the appeal, finding the Appeal Panel's decision not to permit the new issue on appeal was reasonable and its reasons were adequate.

The appellant condominium owner appealed a costs order requiring her to pay $9,344 to the respondent condominium corporation.

The dispute originated from the respondent's request to access the appellant's unit for plumbing repairs, which escalated into a court application despite the appellant's willingness to grant access.

The Divisional Court found the application judge made an error in principle by failing to consider the respondent's premature resort to litigation, unnecessary steps, and scheduling conflicts created by the respondent.

The appeal was allowed, the costs order was set aside, and no costs were awarded to either party.

The respondents in an appeal brought a motion to introduce fresh evidence regarding subsequent actions the Township proposed to take to remedy inconsistencies in its zoning by-laws.

The Divisional Court dismissed the motion, finding that the potential remedial work by the Township would not assist in interpreting the by-law under review.

The court held that the proposed evidence did not meet the test for fresh evidence, as it was not necessary to deal fairly with the issues on appeal and declining to admit it would not lead to a substantial injustice.

The Crown applied for certiorari and mandamus to quash a preliminary inquiry judge's decision discharging the respondent on a charge of first-degree murder.

The Crown argued the judge committed jurisdictional errors by failing to consider the whole of the evidence and deciding issues reserved for the trier of fact.

The Superior Court of Justice agreed, finding that the preliminary inquiry judge improperly engaged in a piecemeal analysis of circumstantial evidence, specifically video surveillance showing the respondent allegedly retrieving and passing a firearm to the co-accused shortly before the murder.

The court quashed the discharge and ordered mandamus directing the preliminary inquiry judge to order the respondent to stand trial.

During a jury trial for first degree murder, the accused brought a pre‑trial application seeking to adduce third‑party suspect evidence implicating other individuals in the killings.

The proposed evidence relied primarily on a witness’s recorded police statement alleging that one individual had confessed to committing the murders.

The court conducted a detailed hearsay analysis and held that the statement lacked threshold reliability due to the witness’s motive to fabricate, serious drug abuse, extensive criminal record, inconsistencies in her accounts, and the absence of meaningful cross‑examination.

The alleged confession was also inadmissible both as a declaration against penal interest and under the principled hearsay exception.

The court further declined to relax evidentiary rules for defence evidence because the statements were inherently unreliable.

The accused was charged with first-degree murder.

Prior to jury selection, the court heard three evidentiary applications.

The accused sought to exclude text messages based on authorship and hearsay.

The Crown sought to admit ante-mortem statements of the deceased under the principled approach to hearsay, and evidence of the accused's discreditable conduct to establish motive.

The court admitted the text messages, finding sufficient evidence of authorship.

The court admitted the ante-mortem statements, finding they met the threshold reliability test.

The court admitted some discreditable conduct evidence (prior gun possession, code of silence) as highly probative of motive, but excluded evidence of gang affiliation and drug trafficking as overly prejudicial.

During a trial for four counts of first-degree murder, the accused brought an application to exclude expert evidence regarding gunshot residue (GSR) found in his vehicle 14 months after the homicides.

The court reviewed the extensive history of the vehicle, including multiple police seizures and the accused's frequent discharge of firearms in other incidents.

The court concluded that the GSR evidence lacked any probative nexus to the specific homicides and that its admission would be highly prejudicial.

The application to exclude the evidence was granted.

On a pre-trial voir dire in a jury murder prosecution, the Crown sought admission of two utterances allegedly made by the accused to persons in authority.

The court held the first utterance, made upon arrest for a separate firearm discharge offence, was voluntary and had an adequate evidentiary link to that shooting to permit its admission, with the ultimate interpretation left to the jury.

The court rejected the argument that the Crown was required to call every officer present between arrest and the utterance.

The second utterance, made after an assault on a Crown witness in courthouse cells, was excluded because it did not reasonably support an inference of witness intimidation and its prejudicial effect outweighed its probative value.

In a jury trial on four counts of first degree murder, the accused sought exclusion of proposed motive evidence tendered by the Crown.

The court held that evidence suggesting the accused wished to impress a mentor with an authentic reputation for violence had a sufficient logical connection to the alleged shooting to satisfy relevance.

The court further held that evidence of the accused having been shot in the same area in 2001 was admissible, not as proof of a generalized animus to the neighbourhood, but as part of the explanation for the choice of location.

The defence submission that the evidence would invite speculative reasoning akin to post-traumatic stress was rejected, and the motive evidence was admitted subject to strict limits ensuring no inference other than that the accused had been an innocent victim in 2001.