ODC 2003

The Ministry of Correctional Services appealed a decision of the Human Rights Board of Inquiry finding that the Ministry failed to comply with a 1998 remedial order regarding a racially poisoned work environment.

The Board had ordered a human rights training program, which was not implemented within the required timeframe or in the approved manner.

The Divisional Court dismissed the appeal, holding that the Board had the supervisory jurisdiction to remain seized of the matter, hear evidence of continuing discrimination, and recast its original orders to ensure an effective remedy.

The father unsuccessfully appealed a trial decision in a child protection proceeding.

The mother, who supported the children's aid society on the appeal, sought costs of $14,000 on a substantial indemnity scale against the father.

The court held that under subrule 24(2) of the Family Law Rules, the presumption of costs does not apply in child protection cases, even as between parents.

As the father's appeal raised genuine issues and he did not behave unreasonably, the court made no order as to costs.

The applicant, a non-custodial parent, sought access to his son's medical records through the Ontario Human Rights Commission, alleging discrimination on the basis of family or marital status.

The Divisional Court dismissed the application for judicial review, holding that the Commission lacks jurisdiction to usurp the Family Court's role in determining parental access rights.

The court found no discrimination and upheld the tribunal's procedural fairness, awarding $1,000 in costs to the Commission.

The applicant sought judicial review of an order made by a Superior Court judge sitting in Family Court in a child protection proceeding.

The applicant argued that the judge should be deemed a judge of the Ontario Court of Justice under the Courts of Justice Act, making the decision subject to judicial review.

The Divisional Court dismissed the application, holding that the judge was sitting as a Superior Court judge and that certiorari does not lie against a decision of a Superior Court judge.

The appellant father appealed the dismissal of his motion to vary child support and rescind over $20,000 in arrears.

He argued that his income had severely diminished due to depression and that the motions judge erred in imputing an annual income of $40,000 based on his past work in family businesses.

The Divisional Court dismissed the appeal, finding that the appellant failed to meet his onus of establishing a material change in circumstances.

The majority held that the motions judge was entitled to conclude that his income was difficult to discern and that a trial of an issue was not required.

The mother sought leave to appeal a trial judge's decision regarding costs in a lengthy child protection proceeding.

The trial judge had dismissed the Society's application for Crown wardship and returned the child to the mother, but only awarded the mother costs for procedural delays, not substantive issues, despite the mother beating her offer to settle.

The Divisional Court dismissed the application for leave to appeal, finding that the trial judge reasonably exercised her discretion in balancing the Society's mandate under Rule 24(2) with the offer to settle provisions in Rule 18(14).

The applicant, a non-profit organization providing services to developmentally disabled individuals, sought judicial review of the Ministry's decision to terminate its funding without notice and direct another agency to take over its operations and property.

The Ministry cited a loss of confidence following several 'serious occurrences'.

The Divisional Court held that the Ministry's actions constituted the exercise of a statutory power subject to judicial review.

The Court found the decision to be illegal, patently unreasonable, and a breach of the duty of fairness, as the Ministry failed to obtain the required Order in Council to seize the property and failed to provide the applicant with fair warning or an opportunity to respond.

The application was granted, and the Ministry was ordered to restore funding and return management to the applicant.

The appellant investors appealed an order disqualifying their counsel and his merged law firm from continuing to represent them in a complex litigation against the respondent promoters.

The disqualification arose after the investors' law firm merged with another firm that had previously acted for the promoters in preparing the offering memorandum at the heart of the dispute.

The Divisional Court dismissed the appeal, finding that the merged firm failed to implement an ethical wall at the time the merger became effective, creating an irreconcilable conflict of interest and a risk of sharing confidential information.

The appellant appealed a Small Claims Court decision awarding the respondent $10,000 on a quantum meruit basis for unpaid boiler repair work.

The appellant argued the Small Claims Court lacked jurisdiction to grant equitable relief under section 96(3) of the Courts of Justice Act.

The Divisional Court dismissed the appeal, holding that quantum meruit is a common law remedy, not an equitable one.

Furthermore, the Court held that even if it were an equitable remedy, section 23(1) of the Act grants the Small Claims Court jurisdiction to award equitable relief in the form of monetary payments up to its jurisdictional limit.

The insured retained a public adjuster on a contingency fee basis to assist with a fire insurance claim.

The insured applied for a declaration that the adjuster's fees were a 'loss' under statutory condition 11 of the Insurance Act, and therefore subject to the appraisal process under s. 128.

The application judge agreed.

The insurer appealed, arguing that 'amount of loss' should be restricted to property damage.

The Divisional Court dismissed the appeal, finding that economic losses were covered by the policy and the enhancer endorsement, and that any ambiguity should be resolved in favour of the insured.

The appellants sought to certify a class action against the federal government and others for alleged systemic physical, emotional, spiritual, and cultural abuse at a residential school operated between 1922 and 1969.

The motion judge dismissed the certification application, finding that a class proceeding was not the preferable procedure due to the highly individualized nature of the claims and the necessity of separate inquiries for each student.

The Divisional Court dismissed the appeal, upholding the motion judge's conclusion that the resolution of common issues would not significantly advance the litigation and that individual actions were the preferable alternative.

The applicant, a non-profit charity providing services to developmentally disabled individuals, sought judicial review of a Ministry decision terminating its funding and directing another agency to take over its operations and property.

The Ministry made the decision without notice, citing a loss of confidence following a series of serious occurrences.

The Divisional Court granted the application, finding the decision was the exercise of a statutory power and thus amenable to judicial review.

The court held the decision was illegal and made without jurisdiction because the Ministry failed to obtain the required order in council under the Ministry of Community and Social Services Act.

Furthermore, the decision was patently unreasonable and breached the duty of fairness owed to the applicant.

The plaintiffs appealed an order dismissing their motion to amend their statement of claim to add a claim for negligent misrepresentation.

The motion was brought 13 years after the action was commenced and long after the relevant limitation period had expired.

The Divisional Court dismissed the appeal, holding that where a limitation period has passed, a plaintiff must show special circumstances to amend a pleading, rather than merely showing an absence of non-compensable prejudice to the defendant.

The court found no special circumstances and noted that the defendant would likely suffer real prejudice given the passage of time.

The Children's Lawyer for Ontario (CLO) acted as litigation guardian and legal representative for a minor.

When the minor reached the age of majority, she requested her file.

The CLO treated the request under the Freedom of Information and Protection of Privacy Act (FIPPA) and refused to disclose portions of the file, claiming exemptions under s. 19 (Crown counsel litigation privilege) and s. 13 (advice to government).

The Information and Privacy Commissioner ordered disclosure.

On judicial review, the Divisional Court held that the Commissioner had standing to participate.

The Court dismissed the application, finding that the CLO is not 'Crown counsel' when acting for a minor and that s. 13 does not apply to advice given for the benefit of a private client.

The CLO's fiduciary duties to the client precluded withholding the file.

The Crown sought leave to appeal an interlocutory order that refused to strike out portions of the plaintiffs' statement of claim.

The plaintiffs alleged that the infant plaintiff's death in a hospital was caused by overcrowded conditions resulting from the funding and restructuring decisions of the former Premier and Health Minister.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision regarding the claims of negligence and abuse of public office.

The court also found that the motion judge's approach conflicted with Supreme Court of Canada jurisprudence on the duty of care owed by public authorities, and that the issues raised were of significant public importance.

The mother of a Crown ward brought a motion to increase her access under section 58 of the Child and Family Services Act.

The Children's Aid Society objected, arguing that because the child had lived with the same foster family for over two years, the mother was required to seek a status review under section 64 and obtain leave under subsection 64(5).

The motion judge ruled that section 58 provides a stand-alone route for access variations.

The Society appealed to the Divisional Court.

The Divisional Court dismissed the appeal, holding that a party seeking merely to vary an access order to a long-term Crown ward may apply directly under section 58 and is not required to embark upon a status review.

The husband sought leave to appeal an order that adjourned a trial, prohibited him from seeking further disclosure, required payment of child support arrears before allowing a motion to vary support, and ordered $15,000 in costs thrown away.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order.

The motion judge had improperly relied on the continuing record without notice to the parties, prohibited the exercise of a statutory right to seek a variation of support, and awarded substantial costs without evidence.

The father appealed a temporary order placing his two children in the care of their mother, with his access to be supervised at the discretion of the Children's Aid Society.

He argued the judge erred in considering dismissed assault charges and lacked jurisdiction to delegate access discretion to the Society.

The Divisional Court dismissed the appeal, finding no error in considering the factual context of the dismissed charges.

The Court also resolved conflicting lower court decisions, holding that sections 58 and 15 of the Child and Family Services Act give the court authority to order access at the discretion of the Society to allow for necessary day-to-day flexibility.

The applicants sought an interim order restraining the Minister of Health from approving plans for the involvement of for-profit corporations in the design or operation of two hospitals, pending the adjournment of their application for judicial review.

The Divisional Court dismissed the motion, finding that the applicants failed to establish a strong prima facie case that the projects would breach the Public Hospitals Act, and failed to show irreparable harm if the interim order was not granted.

The Crown sought leave to appeal an interlocutory order that required it to continue funding Intensive Behavioural Intervention (IBI) therapy for a six-year-old autistic child, despite the program's maximum age limit of six.

The motion judge had granted the mandatory order based on the RJR-MacDonald test, finding that the child would suffer irreparable harm without continued treatment and that the balance of convenience favoured the child.

The Divisional Court dismissed the motion for leave to appeal, finding no error in principle in the motion judge's exercise of discretion and rejecting the Crown's argument that the order amounted to a suspension of the legislation.