ODC 2001

The appellants appealed the dismissal of their motions to certify their actions as class proceedings against life insurance companies regarding the sale of 'premium offset' or 'vanishing premium' policies.

The Divisional Court upheld the motions judges' decisions, finding that the claims were intrinsically individualistic, based on individual representations by agents, and lacked common issues necessary for class certification.

The appeals were dismissed.

The applicant sought leave to appeal to the Divisional Court from a decision refusing an interlocutory injunction to prevent a professional engineering consulting firm from acting for a competitor.

The motion judge found a serious issue to be tried regarding a potential breach of fiduciary duty but found no irreparable harm.

The Divisional Court granted leave to appeal, finding that there was good reason to doubt the correctness of the decision because it was open to serious debate whether the strict conflict of interest approach applied to accountants in Drabinsky should also apply to engineers in a fiduciary relationship.

The appellant husband appealed a spousal support order of $1,800 monthly for ten years, arguing the respondent wife had waived support in their marriage contract.

The motions judge found the waiver resulted in unconscionable circumstances under s. 33(4) of the Family Law Act, as the husband had required the wife to quit her job as an exotic dancer, leaving her in poverty while he maintained a wealthy lifestyle.

The Divisional Court dismissed the appeal, finding the motions judge properly considered the wife's lack of employment prospects, her immigration status, and the unconscionable result of the contract, and did not err in ordering ten years of support.

The appellant appealed a decision regarding the variation of spousal support in the face of a settlement agreement.

The Divisional Court dismissed the appeal, finding that the facts of the case did not warrant a fresh consideration of the causal connection principle established in previous case law.

The appellant wife appealed a trial judgment fixing time-limited spousal support at $550 per month.

The wife, who was qualified in Early Childhood Education, refused to seek employment in her field, instead pursuing a lengthy and unrealistic educational program to become a teacher.

The Divisional Court dismissed the appeal, finding no error in principle in the time limit, as the husband should not bear the costs of an unrealistic educational program.

The quantum was also upheld, as the parties were in similar after-tax positions and the wife had exclusive possession of the matrimonial home.

The requester, an insurance company, sought access to Crown files prepared for a criminal prosecution under the Freedom of Information and Protection of Privacy Act (FIPPA).

The Attorney General refused disclosure, and an Inquiry Officer ordered partial disclosure, finding that litigation privilege under s. 19 of FIPPA terminated when the criminal proceedings ended.

On judicial review, the Divisional Court held that the Inquiry Officer's interpretation of s. 19 was unreasonable and wrong in law, as the statutory exemption for records prepared by Crown counsel for litigation does not incorporate common law limitations on litigation privilege.

The Attorney General's application was allowed, and the requester's application regarding privacy exemptions under s. 21 was dismissed.

The applicants brought a motion before a panel of the Divisional Court to set aside interlocutory orders made by a single judge in a pending judicial review application challenging the cancellation of the spring bear hunt.

The panel allowed the motion in part, permitting the applicants to examine the Premier and the Minister of Natural Resources under Rule 39.03 on the narrow issue of whether the Minister exercised independent discretion or was dictated to by the Premier.

The panel upheld the single judge's orders restricting the applicants to four expert witnesses and directing that the respondents' motion to strike portions of affidavits be heard by a single judge prior to the main application.

The Superintendent of Financial Services appealed a decision of the Financial Services Tribunal regarding the partial wind-up of a pension plan by Monsanto Canada Inc. The Tribunal had ruled that Monsanto was not required to distribute pension surplus on a partial wind-up and that Monsanto had a legitimate expectation based on past regulatory practice.

The Divisional Court allowed the appeal, adopting the dissenting reasons of the Tribunal.

The Court held that section 70(6) of the Pension Benefits Act requires the distribution of surplus on a partial wind-up, and that the doctrine of legitimate expectation cannot justify disregarding the requirements of the law.

The appellant appealed a decision of the Assessment Review Board regarding the property tax assessments for a shopping mall for the 1996 and 1997 taxation years.

The appellant argued the Board erred by failing to use a recent arm's length sale price as the best evidence of market value, and by applying a 'current value' approach rather than a 'market value' approach.

The Divisional Court held that the Board's treatment of the recent sale was a question of mixed fact and law and thus not appealable.

However, the Court found the Board erred in law by applying a 'current value' (unencumbered fee simple) approach, which was introduced by 1997 amendments not applicable to the years in question.

The appeal was allowed and the matter remitted to the Board for redetermination based on the correct 'market value' test.

The appellant, owner of a mixed-use building, appealed an Ontario Municipal Board decision upholding the assessment of its residential units as an income-producing multi-residential rental property.

The residential units were subject to a 999-year lease arrangement where 'co-owners' held an undivided percentage interest in the lease and a right to occupy specific units.

The Divisional Court allowed the appeal, finding that the Board erred in law by strictly applying property law distinctions between leasehold and fee simple interests.

The Court held that under the Assessment Act, the leasehold interests were sufficiently similar to fee-based co-ownerships (like condominiums) to warrant similar assessment treatment.

The appellant tenant appealed a Tribunal order terminating his tenancy so the landlord's son could occupy the unit.

The tenant argued the Tribunal erred in interpreting the 'good faith' requirement under s. 51(1) of the Tenant Protection Act, asserting that the landlord's primary motive was economic since the tenant paid below-market rent.

The Divisional Court dismissed the appeal, holding that 'good faith' only requires a genuine intention to have a family member occupy the unit, regardless of whether the choice of unit was driven by economic reasons.

The court also found the Tribunal properly exercised its discretion under s. 84(1) by postponing the eviction rather than refusing it.

The appellant applied for social assistance but failed to disclose trust funds held for her minor sons.

The local social services department cancelled her benefits and demanded repayment, finding the funds were accessible assets.

The Social Benefits Tribunal upheld this decision.

On appeal, the Divisional Court found that because the trust was discretionary and the co-trustee refused to release the funds, the funds were not accessible to the beneficiaries.

The appeal was allowed, and the trust funds were excluded as assets for determining eligibility.

The appellant grandparents appealed a summary judgment order that granted them access to their grandchildren at the discretion of the respondent parents.

The grandparents, who were self-represented at the motion, argued they were denied procedural fairness.

The Divisional Court dismissed the appeal, finding the motion judge struck an appropriate balance and afforded the grandfather ample time to present his case.

The court also upheld the summary judgment, applying the principle from Chapman v. Chapman that parents have the right to decide whom their children see, absent evidence they are not acting in the children's best interests.

Following the death of their daughter in a motor vehicle accident, both parents applied for death benefits from the insurer.

The insurer paid the father but denied the mother's claim, arguing the Statutory Accident Benefits Schedule only contemplated a single payment.

The motions judge agreed and dismissed the mother's action.

On appeal, the Divisional Court held that the wording of s. 25(2)5.i. of the Schedule, which provides for payment to 'a person' rather than 'the person', requires the insurer to make separate payments to each person upon whom the deceased was dependent.

The appeal was allowed.

The plaintiff was involved in a motor vehicle accident and commenced an action without complying with the defendant insurer's request for a Functional Capacities Assessment under s. 258.3(1)(d) of the Insurance Act.

The defendant successfully moved for an order compelling the plaintiff to submit to the examination.

The plaintiff appealed, arguing the court lacked jurisdiction to order compliance and was restricted to considering non-compliance in awarding costs under s. 258.3(9).

The Divisional Court dismissed the appeal, holding that the court retains discretion to order compliance to further the legislative objective of facilitating early settlement.

The plaintiffs, Ontario residents, purchased a package holiday that included a cruise and a shore excursion in Grenada.

During the excursion, the plaintiff suffered carbon monoxide poisoning in a vehicle operated by the Grenadian defendants.

The plaintiffs sued the tour operators and the Grenadian defendants in Ontario.

The Grenadian defendants moved to stay the proceedings, arguing Ontario lacked jurisdiction simpliciter and was not the convenient forum.

The motions judge dismissed the motion.

On appeal, the Divisional Court upheld the decision, finding a real and substantial connection between Ontario and the subject matter of the action, and that Ontario was the most convenient forum.

The defendants appealed a motion judge's decision that allowed the plaintiff insurer to pursue a subrogated claim for the recovery of statutory accident benefits.

The Divisional Court allowed the appeal, holding that section 267.8(17) of the Insurance Act bars such subrogated claims.

The court found that the exception in section 267.8(18) applies exclusively to the Ministry of Health and does not permit automobile insurers to subrogate against unprotected defendants.

The plaintiff's disability benefits were terminated by the defendant insurer after two years.

The plaintiff sued for specific performance and sought an interlocutory injunction to reinstate payments pending trial.

The defendant sought an adjournment of the motion, which the motions judge granted on the condition that the defendant continue paying benefits for three months without prejudice.

The defendant appealed to the Divisional Court, arguing the motion was brought in the wrong venue and the condition amounted to an improper mandatory injunction.

The Divisional Court dismissed the appeal, holding that a venue irregularity does not automatically invalidate an order absent prejudice, and the payment condition was a valid exercise of discretion to mitigate the prejudice of the adjournment, not a determination on the merits of the injunction.

The appellants appealed an order declaring their construction lien invalid and vacating its registration.

The motion judge had invalidated the lien because the Affidavit of Verification lacked a completed jurat, despite subsequent evidence confirming it was properly sworn before a commissioner.

The Divisional Court allowed the appeal, distinguishing between the affidavit itself and the jurat, which merely provides evidentiary proof.

The Court held that subsequent proof of the proper completion of the affidavit is acceptable, and the lien remains valid.

The applicant County sought judicial review of a Pay Equity Hearings Tribunal decision which found that private-home day care providers were employees of the County for the purposes of the Pay Equity Act.

The Tribunal had applied the common law 'total relationship' and 'organization/integration' tests to conclude the providers were employees.

The Divisional Court granted the application and quashed the Tribunal's decision, finding it to be patently unreasonable.

The majority held that the Tribunal ignored or irrationally discounted evidence demonstrating that the providers were independent contractors, such as their contracts, tax filings, and level of independence.