ODC 2000

The applicant brought a motion for interim relief pending the determination of its application for a declaration that the Minister of Health acted unlawfully in refusing to recommend its generic drug for inclusion in the Drug Benefit Formulary.

The Minister had reconsidered its recommendation after a Federal Court decision quashed the applicant's Notice of Compliance, despite a subsequent stay of that decision.

The court dismissed the motion, finding that the Minister's refusal was motivated by a desire to protect the public interest, and therefore the applicant failed to meet the balance of convenience requirement for interim relief.

The Ontario Human Rights Commission brought an application for judicial review of an interim decision made by the Board of Inquiry regarding the production of records.

The Divisional Court dismissed the application, finding no exceptional or extraordinary circumstances to justify fragmenting the ongoing hearing before the Board.

The Court held that the Board's decision was a reasonable exercise of its discretion at a preliminary stage, particularly in applying the balancing test from A.M. v. Ryan and considering the confidentiality undertaking in place.

Costs of $3,500 were awarded to the respondent employer against the Commission.

The Ministry appealed a decision of the Social Benefits Tribunal finding that the respondent was a 'person with a disability' under the Ontario Disability Support Program Act.

The Ministry argued the Tribunal failed to consider sedentary employment possibilities and relied on unverified medical details.

The Divisional Court dismissed the appeal, holding that the Tribunal correctly applied the law, was entitled to consider the applicant's specific circumstances, and had ample evidence to support its factual findings.

The appeal was allowed only on consent to amend the starting date of payments.

The appellant father appealed an order dismissing his application to terminate spousal support and his application to require the respondent mother to pay child support after their daughter moved to his residence.

The Divisional Court dismissed the appeal regarding spousal support, finding no material change in circumstances to justify termination, as the mother had not yet achieved self-sufficiency.

However, the court allowed the appeal regarding child support, ordering the mother to pay the Table amount of $222 per month, as she failed to establish undue hardship under the Federal Child Support Guidelines.

The self-represented moving party sought an extension of time and leave to appeal an interlocutory child support order to the Divisional Court.

The court noted that the moving party had previously attempted to appeal to the Court of Appeal and was advised he was in the wrong court.

Finding no explanation for the delay in seeking leave within the required seven-day period under Rule 62.02(2), the court dismissed the application to extend time and quashed the application for leave to appeal.

The appellant appealed an order refusing to set aside a final child support variation order made after he moved to British Columbia.

The Divisional Court allowed the appeal and extended the time to appeal the original variation order.

The majority held that under sections 17(1) and 18(2) of the Divorce Act, a final order cannot be made against an out-of-province respondent unless they attorn to the jurisdiction or consent; otherwise, only a provisional order can be made.

The matter was remitted for a rehearing.

Three employers applied for judicial review of arbitration awards that reinstated employees who had been discharged following criminal convictions for sexual assault in the workplace.

In each case, the arbitrators had allowed the unions to collaterally attack the criminal convictions and had concluded the employees were innocent.

The Divisional Court granted the applications and quashed the arbitration awards, holding that a criminal conviction cannot be collaterally attacked at a subsequent arbitration.

The doctrine of abuse of process prevents an arbitrator from retrying a criminal case and treating a conviction as merely prima facie evidence.

The defendant insurer appealed a trial judgment finding that the plaintiff, an innocent purchaser of a stolen vehicle, had an insurable interest in the vehicle after it was subsequently stolen from him.

The plaintiff cross-appealed the quantum of damages.

The Divisional Court upheld the trial judge's finding that the plaintiff had a possessory interest constituting an insurable interest, applying the factual expectancy test.

The majority of the court allowed the cross-appeal on damages, increasing the award to $25,900 to reflect the fair market value of the vehicle and rental expenses, rather than limiting recovery to the cash amount paid.

The appellant, a corrections officer who was severely injured by an inmate, appealed a decision of the Criminal Injuries Compensation Board.

The Board had awarded the maximum amount for pain and suffering but deducted a $12,000 Non-Economic Loss (NEL) award received from the Workers' Compensation Board, pursuant to s. 17(3) of the Compensation for Victims of Crime Act.

The appellant argued this resulted in a double deduction because his long-term disability insurance also deducted the NEL award.

The Divisional Court dismissed the appeal, finding the Board properly exercised its discretion and that any dispute regarding insurance deductions was a matter between the appellant and his insurer.

The appellant university landlord appealed a decision of the Ontario Rental Housing Tribunal which found that the university's 'no pet rule' and refusal to renew a tenancy agreement substantially interfered with the tenants' reasonable enjoyment.

The tenants, who kept cats in their student housing unit, had signed an agreement to terminate the tenancy at the time of entering the lease.

The Divisional Court allowed the appeal, holding that while the 'no pet' provision was void under the Tenant Protection Act, the university was exempt from the prohibition against agreements to terminate signed at the inception of a tenancy due to the student housing exemption in O. Reg. 194/98.

Consequently, the university was entitled to rely on the agreement to refuse a new tenancy at the end of the term.

The applicants, inmates awaiting trial at the Ottawa-Carleton Detention Centre, brought an application for judicial review challenging the implementation of a new telephone system that imposed an automatic twenty-minute time limit on outgoing calls.

They argued this restriction violated their freedom of expression under section 2(b) of the Charter and section 5 of the Ministry of Correctional Services Act.

The majority of the Divisional Court dismissed the application, finding no statutory or Charter breach, and held that any such breach would be saved by section 1 of the Charter.

A dissenting judge would have allowed the application for pre-trial inmates, emphasizing the presumption of innocence.

The applicant, the Régie des rentes du Québec, brought an application for judicial review of a decision by the respondent, the Pension Commission of Ontario, which had approved the withdrawal of a pension surplus by an employer.

The pension plan had members in both Ontario and Québec.

The respondent, acting as the major authority under a reciprocal agreement, applied Ontario law exclusively to the surplus application.

The Divisional Court found the respondent's decision unreasonable because it failed to consider or apply Québec law to the Québec members, despite the plan's terms and the lack of an express exemption.

The decision was quashed as it affected Québec members and remitted for reconsideration.

The appellant housing co-operative appealed a decision dismissing its application to evict the respondent for breaching its lock and pet by-laws.

The trial judge had dismissed the application on the basis that the by-laws were unreasonable.

The Divisional Court allowed the appeal, finding that the trial judge misapprehended the evidence and erred in principle by failing to defer to the democratically enacted by-laws of the co-operative.

The Court held that absent bad faith or overwhelming unreasonableness, courts should not substitute their views for those of a co-operative's membership.

The plaintiffs and a non-party former employee appealed a Master's order granting the defendant leave to examine two non-party former employees for discovery.

The Master found the former employees had information relevant to a material issue and fashioned a remedy to protect them, including ordering the defendant to pay for their counsel.

The Divisional Court dismissed the appeals, finding the Master made no error and fashioned a commonsense solution.

The applicant sought leave to appeal a decision of Wilkins J., which had set aside a Master's order requiring production of communications between a creditor and the bankruptcy trustee.

Wilkins J. had found that while strict common interest privilege did not apply, the communications were privileged on public policy grounds because the parties had a common intent agreement and the trustee's solicitor was acting as the solicitor for the creditor.

MacFarland J. dismissed the application for leave to appeal, finding no good reason to doubt the correctness of Wilkins J.'s decision and noting that the issues did not transcend the interests of the parties.

The Speaker of the Legislative Assembly of Ontario applied for judicial review of a decision by the Ontario Human Rights Commission to investigate a complaint regarding the reading of the Lord's Prayer during the Assembly's daily proceedings.

The Speaker argued that the Commission lacked jurisdiction due to parliamentary privilege.

The Divisional Court granted the application, holding that the Standing Orders governing the Assembly's proceedings fall within the scope of parliamentary privilege and are immune from outside investigation by the Commission.

The moving parties appealed their property assessments to the Ontario Municipal Board, which dismissed the appeals.

A single judge of the Divisional Court denied their motion for leave to appeal.

The moving parties then brought a motion before a panel of the Divisional Court under s. 21(5) of the Courts of Justice Act to set aside the denial of leave.

The Divisional Court held that a decision granting or denying leave to appeal made by a single judge can only be set aside if the judge declined jurisdiction.

As the motions judge applied the correct test and did not decline jurisdiction, the motion was dismissed.

The applicants challenged a City of Toronto by-law requiring individual taxi-cab owners to attend mechanical examinations of their vehicles in person, while allowing corporate and partnership owners to send designated custodians.

The applicants argued the by-law lacked enabling authority, was enacted in bad faith, was vague, violated procedural fairness, and infringed section 15 of the Charter.

The Divisional Court rejected the administrative law arguments but found the personal attendance requirement had a discriminatory effect on elderly and disabled owners who could not reasonably attend in person.

The court held the provision was not saved by section 1 of the Charter, as the owner's presence was not necessary for an effective examination, and struck down the impugned section of the by-law.

The applicants, a lawyer and his law firm, sought judicial review to prohibit the Ontario Securities Commission from continuing proceedings against the lawyer under s. 127(1) of the Securities Act.

The Commission alleged the lawyer made misleading statements in a letter during a prospectus review.

The applicants and the Law Society of Upper Canada argued the Commission lacked jurisdiction to discipline lawyers acting in a professional capacity, asserting such power belonged exclusively to the Law Society and that the Commission's exercise of it violated the independence of the bar.

The Divisional Court dismissed the application, finding that s. 127(1) applies to lawyers and that the Commission's public interest jurisdiction to control its processes does not usurp the Law Society's role or infringe the rule of law.

The plaintiff bank brought actions for judgment on mortgages and to declare a property transfer a fraudulent conveyance.

The defendant counterclaimed for abuse of process, intentional infliction of mental suffering, and breach of fiduciary duty, alleging the bank was piling on claims to pressure her into settling the first mortgage claim despite her serious illness.

The bank's motion to strike the counterclaim was initially dismissed.

On appeal, the Divisional Court struck the claims for abuse of process and intentional infliction of mental suffering, finding the defendant failed to plead a collateral purpose or an act outside the action.

The court held that the bank's delay in bringing the motion did not prevent striking a pleading that was a nullity in law.

The claim for breach of fiduciary duty was allowed to stand.