ODC 2002

The appellant appealed a Financial Services Tribunal decision that directed the Superintendent not to order the Ontario Teachers' Pension Plan Board to pay her a pre-retirement death benefit.

The appellant and the deceased plan member had separated and executed a separation agreement dividing the pension, but the deceased later remarried.

The Divisional Court held that under section 48(13) of the Pension Benefits Act, the subsequent spouse's entitlement to the death benefit is subject to the former spouse's interest set out in a valid domestic contract.

The appeal was allowed and the Board was ordered to pay the appellant her share of the benefit.

The appellant appealed an order that imputed his income at $65,000, rescinded child support, and transferred a child's education fund to the respondent.

The Divisional Court found that the motion judge erred in finding the appellant in default of financial disclosure obligations, as the order lacked a specific time limit and the hearing date had been advanced.

The court also found no basis for imputing the appellant's income at $65,000, noting that his actual income was $28,400 while the respondent's was $64,300.

The court allowed the appeal, recalculated child support based on the parties' actual incomes, and set aside the transfer of the education fund on the condition that the appellant maintain it for the child's benefit.

The appellant appealed a trial decision regarding retroactive child support.

The Divisional Court found the trial judge erred in concluding there was no evidence that a portion of the respondent's personal injury settlement was attributable to income replacement.

To avoid further expense, the court determined a fair amount for retroactive child support based on the circumstances and the amount clearly attributable to income.

The appeal was allowed, and the respondent was ordered to pay $10,000 in retroactive child support plus costs.

The father appealed a decision setting aside a consent order that allowed him to deduct CPP disability benefits paid to his children from his child support obligations.

The Divisional Court allowed the appeal, finding that the appeal judge erred by failing to recognize that the issue was res judicata and by ignoring the statutory exception under s. 33(14) and (15) of the Family Law Act, which permits such deductions when parties consent.

The appellant appealed an order varying a permanent custody order.

The Divisional Court allowed the appeal and set aside the variation order, adopting the reasons of the judge who granted leave to appeal.

The court noted that the original custody order was made after a full hearing with full reasons, and the concerns expressed in Sypher v. Sypher did not apply.

The defendants appealed an order dismissing their motion to enjoin the plaintiffs from seeking access to discovery evidence in parallel U.S. anti-trust litigation.

The defendants argued that the plaintiffs were attempting to circumvent Ontario's discovery rules by obtaining discovery in the U.S. before certification of the class action.

The Divisional Court dismissed the appeal, finding that the plaintiffs were merely seeking passive access to evidence already discovered in the U.S. litigation, rather than actively conducting discovery.

The court held that such evidence gathering does not offend Ontario's discovery rules or the implied undertaking rule, and that the U.S. court should determine whether to grant access under its own protective order.

The plaintiffs, comprising Canadian citizens and Yugoslavian residents, sued the Government of Canada for damages in tort and under the Charter relating to Canada's participation in the 1999 NATO bombing of Yugoslavia.

The Crown brought a motion to strike the statement of claim, which was initially dismissed.

On appeal to the Divisional Court, the court allowed the appeal and struck the statement of claim in its entirety.

The court held that the executive decision to participate in the bombing was a matter of high policy and Crown prerogative, making the tort claims non-justiciable.

Furthermore, the Crown is immune from tort liability for military actions and pure policy decisions.

While the Charter claims were justiciable, the court found that state-to-state military action does not engage section 7 or section 15 of the Charter.

The College of Physicians and Surgeons appealed an order granting a physician a stay of his licence revocation pending his appeal of a finding of incompetence.

The College argued that s. 71 of the Health Professions Procedural Code ousted the court's jurisdiction to grant a stay.

The Divisional Court dismissed the appeal, holding that s. 71 merely eliminates the automatic stay that would otherwise apply under the Statutory Powers Procedure Act, but does not remove the court's inherent and statutory jurisdiction to grant a stay on application where appropriate.

The applicant union sought judicial review of an arbitration decision that allowed the employer municipality to fill new positions using management rights clauses rather than seniority provisions from predecessor collective agreements following amalgamation.

The Divisional Court quashed the arbitrator's decision, finding it patently unreasonable to apply management rights while ignoring the seniority provisions to which those rights were subject under the statutorily mandated composite collective agreement.

The applicant, a federal Crown corporation, sought judicial review of a decision by the Ontario Board of Inquiry adding it as a respondent to a human rights complaint.

The complainant alleged that the rent calculation formula for social assistance recipients in her co-operative housing, mandated by the applicant's funding agreement, was discriminatory.

The Divisional Court quashed the Board's order, holding that the applicant's imposition of funding conditions was a valid exercise of the federal spending power under s. 91(1A) of the Constitution Act, 1867.

The Court applied the doctrine of interjurisdictional immunity, finding that provincial human rights legislation must be read down so as not to impair the essential powers of a federal agency carrying out its core functions.

The appellants, a commercial printer and its president, refused to print letterhead and business cards for the Canadian Lesbian and Gay Archives due to the president's religious beliefs regarding homosexuality.

A Board of Inquiry found this constituted discrimination based on sexual orientation and ordered the appellants to provide printing services to gays, lesbians, and their organizations.

On appeal, the Divisional Court upheld the finding of discrimination but found the Board's order overly broad, as it could compel the printing of materials directly conflicting with the president's core religious beliefs.

The Court amended the order to exempt the appellants from printing materials that reasonably conflict with the core elements of the president's religious beliefs, while affirming the order in all other respects.

The appellant, a charitable corporation providing housing for the homeless and mentally ill, appealed a decision denying it a property tax exemption under s. 3(1)12 of the Assessment Act.

The respondent argued that because the appellant rented units to tenants who had exclusive possession, the appellant did not 'occupy' the land.

The Divisional Court allowed the appeal, holding that the property was occupied by the appellant because it was controlled and employed as a necessary prerequisite to fulfill its charitable mandate.

The appellant contractor obtained a judgment against the owner and garnished funds held by an escrow agent.

The respondent, another judgment creditor, also garnished the funds.

The sheriff distributed the funds pro rata under the Creditors' Relief Act.

The appellant appealed, arguing the funds were impressed with a trust under s. 7(2) of the Construction Lien Act.

The Divisional Court allowed the appeal, holding that the funds were trust funds, were not the property of the debtor, and were therefore not subject to pro rata distribution under the Creditors' Relief Act.

The applicant judges' association sought judicial review of the Ontario government's decision to reject the pension recommendations of the Fourth Triennial Remuneration Commission.

The government had retained independent actuaries to cost the recommendations before rejecting them.

The Divisional Court held that the actuarial affidavits were admissible, as the government was entitled to seek expert advice to justify its decision.

The court found that the government was not required to return to the Commission before making its decision, and that its rejection of the recommendations met the constitutional standard of simple rationality.

The defendant sought leave to appeal an order removing their counsel due to a disqualifying conflict of interest arising from a law firm merger.

The motions judge had applied a strict 'bright line' test, disqualifying the firm because an ethical wall was not erected prior to the merger.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision, as it failed to apply the balancing approach mandated by Rule 2.05(4) of the Rules of Professional Conduct and ignored evidence that the motion may have been brought for tactical purposes.

The plaintiff sued his insurer for bad faith after it denied his claim for a dismemberment benefit.

On a motion for production, the motions judge ordered the insurer to produce legal opinions from its counsel and its entire claims file, finding that the bad faith claim overrode solicitor-client privilege and that litigation privilege was not established.

The Divisional Court allowed the insurer's appeal, holding that a bad faith claim does not destroy solicitor-client privilege for legal opinions.

The court also set aside the blanket order for the claims file, directing the insurer to deliver a further and better affidavit of documents properly particularizing its privilege claims.

The appellant appealed an Ontario Municipal Board (OMB) decision which held that the commercial taking of water was not a 'use of land' under the Planning Act and therefore outside its jurisdiction.

The Divisional Court allowed the appeal, finding that the extraction of water using piping and pumps constitutes a use of land.

The Court held that the OMB erred in law by refusing to consider the water taking aspect of the proposed operation and directed a rehearing to consider the entire application for official plan and zoning by-law amendments.

The City of Ottawa passed a by-law establishing new ward boundaries for upcoming municipal elections.

Three residents' associations appealed the by-law to the Ontario Municipal Board.

The Minister of Municipal Affairs and Housing issued a Notice of Deferral under s. 25 of the Municipal Act, staying the appeal.

The City brought an application for judicial review to quash the Notice.

The Divisional Court granted the application, finding that the Minister's power to defer applications under s. 25 did not extend to appeals of municipal by-laws under s. 13.1(2).

The Notice of Deferral was quashed for lack of jurisdiction.

The plaintiffs were injured in motor vehicle accidents and commenced both accident benefit arbitration proceedings and tort actions.

In the tort actions, the defendants sought production of medical reports obtained during the arbitration proceedings.

The motions judges dismissed the requests, relying on the implied undertaking rule.

On appeal, the Divisional Court held that neither the deemed undertaking rule nor the implied undertaking rule protected the medical reports from disclosure.

The reports were highly relevant to the tort actions, and the plaintiffs had waived their privacy interests by putting their medical conditions in issue.

The appeals were allowed and the plaintiffs were ordered to produce the reports.

The applicants, competitors in the wastewater treatment system market, sought judicial review of a decision by the Building Materials Evaluation Commission (BMEC) to amend their previously granted authorizations.

The BMEC initiated the review on its own motion due to interpretation difficulties and potential health and safety concerns.

The Divisional Court held that while the BMEC lacked express statutory authority to amend the authorizations outside of specific conditions, it possessed implied legislative authority to reconsider its decisions where public health and safety warranted, and was therefore not functus officio.

However, the Court quashed the BMEC's decision, finding that the BMEC breached the duty of procedural fairness by failing to provide the applicants with adequate notice and disclosure of the information underlying the proposed amendments, thereby depriving them of a meaningful opportunity to respond.