ODC 2003

The Travel Industry Council of Ontario appealed a decision of the Licence Appeal Tribunal that allowed a compensation claim by a travel agent.

The appellant argued the Tribunal erred in substituting its own finding for the date of the event giving rise to the claim and failed to provide sufficient reasons.

The Divisional Court dismissed the appeal, finding the Tribunal had the right to substitute the date under the Regulation made under the Travel Industry Act, the date found was reasonable, and the written reasons provided were sufficient.

The plaintiff, who claimed to suffer from chronic fatigue syndrome, was denied long-term disability benefits by the defendant insurer.

The plaintiff commenced an action and successfully moved for a mandatory interlocutory injunction requiring the insurer to pay periodic disability benefits and arrears until trial.

The insurer appealed.

The Divisional Court allowed the appeal and set aside the injunction, finding that the motions judge erred in concluding the plaintiff would suffer irreparable harm.

The majority held that the plaintiff's financial hardship and potential loss of dignity did not constitute irreparable harm, as damages would be an adequate remedy if the plaintiff succeeded at trial.

The appellants appealed a decision regarding the remuneration of a condominium director and an agent.

The Divisional Court held that while s. 28(3) of the Condominium Act requires a specific by-law for the remuneration of directors, s. 28(1)(c) permits the board to remunerate officers and agents without a by-law.

The appeal was dismissed regarding Mr. Sisto, who was remunerated as a director without a by-law.

The appeal was allowed regarding Mr. Cianfarani, an agent of the corporation, as he could be remunerated without a by-law.

The moving party sought leave to appeal a $10,000 costs award made against it by the Ontario Municipal Board for procedural non-compliance.

The moving party argued the Board erred by allowing an oral request for costs instead of a written one as required by the former Rule 100.

The Divisional Court extended the time to seek leave but dismissed the application, noting that the rule had since been amended to permit oral submissions, rendering the issue moot and not of public importance.

The moving parties sought leave to appeal a decision of the Ontario Municipal Board which found that the respondents fell within the transition provisions of the Oak Ridges Moraine Conservation Act and were entitled to a hearing on their appeals regarding aggregate resource uses.

The Divisional Court granted leave to appeal, finding that the interpretation of the newly enacted legislation raised a point of law of sufficient public importance and that there was sufficient reason to doubt the correctness of the Board's decision.

The applicant moved to strike an affidavit and attachments filed by the respondent on an application for judicial review.

The materials were not before the Commissioner.

The Divisional Court granted the motion, holding that the record on judicial review should essentially be the material before the decision-maker, and the affidavit improperly sought to expand the record regarding the applicant's conduct rather than addressing jurisdictional error.

The self-represented plaintiff brought a motion for leave to appeal a decision striking out his statement of claim, which sought damages for alleged Charter violations.

The Divisional Court dismissed the motion, finding that the plaintiff failed to meet the mandatory test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure, as he did not demonstrate conflicting decisions or good reason to doubt the correctness of the lower court's order.

The appellants appealed an order dismissing their motion for certification of a class proceeding and striking certain paragraphs of their statement of claim.

The proposed class action alleged negligence and negligent/reckless misrepresentation by the respondent auditors in connection with financial statements relied upon by lenders who advanced over US$1 billion.

The Divisional Court allowed the appeal in part, finding that the motions judge erred in striking the claim for reckless misrepresentation and in concluding that a class proceeding was not the preferable procedure.

The court upheld the striking of claims by assignor lenders and claims against individual partners and employees.

The matter was referred back to a class proceedings judge.

The defendants sought leave to appeal an order permitting the plaintiff to video-record a defence psychiatric examination.

The motions judge had allowed the recording because the defence doctor refused to allow the plaintiff to take notes or record the examination.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decision under Rule 62.02(4)(a) and that the matter was not of general importance under Rule 62.02(4)(b), as the Court of Appeal had already established the legal principles in Bellamy v. Johnson.

The applicant brought an application to quash an order of the Alcohol and Gaming Commission of Ontario that granted intervenor status to the Liquor Control Board of Ontario in two stay motions.

The stay motions were based on allegations of witness tampering by an LCBO employee.

The Divisional Court held that the Board's decision to grant intervenor status was incorrect, as the LCBO had no interest in the stay motions and its intervention would distort the adversarial process.

The order granting standing to the LCBO was quashed.

The appellant police officer appealed a decision of the Ontario Civilian Commission on Police Services, which affirmed a Hearing Officer's finding of discreditable conduct and the penalty of dismissal.

The misconduct involved an inappropriate relationship and harassment of a 16-year-old girl.

The Divisional Court applied the standard of reasonableness simpliciter to the Commission's decision.

The Court found no error in the Commission's treatment of the Hearing Officer's credibility assessments, evidentiary rulings, or the penalty imposed.

The appeal was dismissed.

The appellants appealed a judgment granting the respondent's application for the sale of five commercial properties under the Partition Act.

The parties were co-tenants, and the respondent, holding a minority interest, refused to consent to the appellants' management and leveraging plans after the appellants acquired their majority interest.

The Divisional Court dismissed the appeal, affirming that a co-tenant has a prima facie right to compel a sale under the Davis test, and that the respondent's conduct was not malicious, oppressive, or vexatious, but rather a predictable response to a business relationship breakdown.

The appellant contracted with the respondent for the installation of a high-efficiency gas furnace and air-conditioning unit.

Dissatisfied with the location of the ductwork and other elements, the appellant refused to pay the balance owing.

The respondent successfully sued in Small Claims Court for the unpaid balance.

The appellant appealed to the Divisional Court.

The court dismissed the appeal, finding no substantial error by the trial judge, noting that the appellant had left the specific location of the materials to the professionals and the contract made no specific provision for it.

A ratepayers' association applied for judicial review of a school board's decision to lease a closed school site to a private developer for a seniors' complex.

The ratepayers argued the board breached a duty of fairness by failing to consult the public before approving the lease, relying on a voluntary board policy.

The Divisional Court dismissed the application, finding that the board owed no general duty of fairness to local residents regarding the disposition of surplus property.

Furthermore, the board's internal policy did not create a legitimate expectation of public consultation because it was not published or relied upon by the community.

Following the dismissal of an application for judicial review as premature, the court considered written submissions on costs.

The self-represented applicant argued that costs should be awarded against the successful respondent due to alleged improper conduct in its prosecution of her.

The court found that these allegations were matters still before the Law Society Committee and it would be premature to consider them.

Costs were awarded to the respondent on a partial indemnity scale, fixed at $1,500.

The plaintiffs appealed a master's order removing their solicitors of record due to a conflict of interest.

The defendants argued that a U.S. counsel listed on the plaintiffs' law firm's letterhead had previously represented one of the defendants, creating a conflict.

The Divisional Court allowed the appeal, finding that the U.S. counsel was not a member of the firm, but merely had a referral arrangement.

Therefore, there was no solicitor-client relationship between the firm and the defendant, no presumption of shared confidences, and no disqualifying conflict of interest.

The applicants sought judicial review of orders made by the Alcohol and Gaming Commission of Ontario directing that a hearing proceed in camera and restricting the attendance of counsel for interested persons.

The Divisional Court quashed the orders, emphasizing that the Statutory Powers Procedure Act and the common law strongly favour open hearings.

The Court found that the Board failed to consider less restrictive measures to address its concerns regarding the presence of counsel while witnesses were excluded.

The applicants sought an order in the nature of certiorari to quash the appointment of an investigator by the College of Physiotherapists of Ontario to examine their practices, and a stay of the investigations.

The Divisional Court dismissed the application as premature, noting the well-established rule against piecemeal judicial review of administrative action absent exceptional circumstances.

The court held that the administrative proceedings should run their full course before judicial intervention.

The appellant condominium corporations appealed a Licence Appeal Tribunal decision disallowing their warranty claims against the Ontario New Home Warranty Program.

The appellants argued that under s. 13(6) of the Ontario New Home Warranties Plan Act, statutory warranties continue in force despite any agreement to the contrary, rendering their previously executed releases with the builder unenforceable.

The Divisional Court distinguished prior case law, noting the releases were executed by sophisticated parties with legal advice to settle a known, properly filed warranty claim.

The Court held that the Act encourages settlements and does not bar parties from settling claims in exchange for a release.

The appeal was dismissed.

The Registrar of the Motor Vehicle Dealers Act appealed a Tribunal decision that refused to direct the Registrar to carry out a proposal to revoke the respondent's registration.

The Divisional Court allowed the appeal, finding the Tribunal erred in law by misdirecting itself on the obligations of a corporate director under the Business Corporations Act, misconstruing the respondent's ignorance of his statutory responsibilities, and ignoring relevant evidence of his role in the business.

The Court directed the Registrar to carry out the proposal to revoke the registration.