ODC 2003

The appellant rented a loader from the respondent and accidentally submerged it in water, causing severe engine damage.

The respondent successfully sued in Small Claims Court for repair costs and lost rental income.

The appellant appealed to the Divisional Court, raising issues regarding machine identification, causation of the engine damage, proof of lost rentals, betterment, and the damage waiver clause.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's findings of fact and liability.

The Ministry of Transportation sought to recover $600 paid to a fire department for first aid services provided to victims of a motor vehicle accident from the at-fault driver and owner.

The Small Claims Court dismissed the action.

On appeal, the Divisional Court upheld the dismissal, finding that the claim was for health care expenses rather than property damage.

Under section 267.5(3) of the Insurance Act, the at-fault driver and owner are immune from liability for health care expenses arising from the use or operation of an automobile.

The appellants appealed the dismissal of their second motion for summary judgment and other relief.

The motion judge had ruled that the dismissal of their first summary judgment motion rendered the determination of triable issues res judicata.

The Divisional Court upheld the motion judge's decision, finding no error in the conclusion that the finding of a genuine issue for trial was res judicata, as the appellants had failed to put their best foot forward on the first motion.

The court also found no error in the motion judge's implicit refusal to grant leave to bring the motion after the action was set down for trial.

The appeal was dismissed with costs.

The defendant sought leave to appeal a decision dismissing its motion to stay or dismiss the action on the basis of jurisdiction and forum non conveniens.

The defendant argued that the motion judge failed to apply the correct principles regarding forum selection clauses as recently set out by the Supreme Court of Canada.

The Divisional Court found that the motion judge had correctly applied the principles, noting that the burden on the plaintiff to show strong cause only arises once the jurisdiction clause is found to be binding, which the motion judge did not find.

The motion for leave to appeal was dismissed.

The defendant franchisor moved for leave to appeal an order certifying a class proceeding brought by franchisees regarding the withholding of rebates.

The defendant argued that the proposed representative plaintiffs had a conflict of interest with other class members who had different economic arrangements with the franchisor and feared disruption of their businesses.

The court granted leave to appeal, finding that the issue of whether the representative plaintiffs could fairly and adequately represent the class without conflict was open to serious debate and of general importance to the development of class action law.

The applicants sought leave to appeal to the Divisional Court from a motions judge's orders extending a certificate of pending litigation and requiring funds from a property to be paid into court.

The underlying action involved allegations of a fraudulent conveyance and a defective notice of sale under the Mortgages Act following an assignment of a mortgage.

The Divisional Court dismissed the application for leave to appeal, finding no reason to doubt the correctness of the motions judge's orders, no conflicting decisions, and no issue of general or public importance.

The respondents/plaintiffs sought costs on a substantial indemnity basis following the dismissal of the applicants/defendants' motion for leave to appeal.

The applicants/defendants argued that costs should be fixed on a partial indemnity basis, noting that the motion was interlocutory and not unduly complex.

The court agreed with the applicants/defendants and fixed costs on a partial indemnity basis at $5,000 plus disbursements and GST, reflecting the everyday range for leave to appeal applications in the Divisional Court.

The applicant sought judicial review of a decision by the Ontario Human Rights Commission not to deal with his complaint under s. 34 of the Human Rights Code.

The Divisional Court dismissed the application, finding no error in the Commissioner's conclusion that the complaint could be more appropriately dealt with under the Labour Relations Act and that the applicant had already engaged in mediation during the arbitration process.

The court held that the Commissioner's decision was not patently unreasonable and awarded costs to the respondents.

The deceased's sons brought a dependant's support claim against his estate, arguing that two life insurance policies worth $1,500,000 should be included in the estate under s. 72(1)(f) of the Succession Law Reform Act.

The policies were owned by a corporation in which the deceased and his wife each held a 50% interest.

The motion judge found the deceased had a beneficial interest and deemed him to have owned the policies.

The Divisional Court allowed the appeal, holding that the policies were owned by the corporation, not the deceased, and therefore did not form part of his estate for the purposes of the Act.

The appellant appealed a decision upholding a case management master's order that denied full documentary production prior to a motion to stay the action for arbitration.

The Divisional Court clarified the standard of review for orders of case management masters, holding that discretionary decisions and interlocutory matters of law not vital to the disposition of the lawsuit are subject to a standard of deference and should not be interfered with unless clearly wrong.

Finding that the master's decision on documentary production was not vital to the disposition of the lawsuit, the court dismissed the appeal.

The respondent college brought a motion to dismiss the union's application for judicial review on the grounds of undue delay.

The union had delayed perfecting the application for approximately nineteen months, citing difficulties assembling the record, a strike, and counsel workload.

The court applied the three-part test for undue delay, considering the length of delay, the explanation, and prejudice.

Although the delay was substantial and the explanation regarding counsel workload was generally insufficient, the court dismissed the motion because there was no actual prejudice to the college and no ongoing turmoil in the workplace.

The Registrar of the Motor Vehicle Dealers Act appealed a tribunal decision.

The Divisional Court adjourned the hearing, directing the parties to provide the complete record of the respondent's prior criminal appeal and written submissions on whether the tribunal impermissibly allowed a collateral attack on those criminal convictions.

The applicant union sought judicial review of an arbitrator's decision upholding the dismissal of an employee with schizophrenia.

The employee had a history of failing to take her medication, leading to disruptive behaviour.

The arbitrator found that the final incident jeopardized workplace safety and that the employer could not accommodate the employee without undue hardship.

The Divisional Court dismissed the application, finding the arbitrator's decision was not patently unreasonable and correctly applied the Meiorin test for accommodation.

The appellant appealed a jury verdict assessing her general damages at $35,000 and future loss of income at zero following a rear-end motor vehicle collision.

The appellant argued that questions posed by the jury during deliberations showed they considered irrelevant matters, and sought a new trial or reassessment of damages.

The Divisional Court dismissed the appeal, finding that the trial judge's recharge cured any potential issues with the jury's questions, and that the jury's verdict on damages was not so unreasonable and unjust as to warrant appellate intervention.

The applicants sought judicial review of an Ontario Labour Relations Board decision but delayed perfecting the application for 13 months.

The respondents brought a preliminary motion to dismiss the application for delay.

The Divisional Court granted the motion, noting the applicants offered no explanation for the delay, evaded explicit OLRB orders, and caused ongoing prejudice and uncertainty in a time-sensitive labour relations dispute.

The applicant sought judicial review of three orders made by a panel of the Alcohol and Gaming Commission of Ontario that directed a hearing to proceed in camera and excluded counsel for interested persons.

The Divisional Court quashed the orders, emphasizing that section 9(1) of 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.

Following a successful appeal, the appellant sought costs on a partial indemnity scale.

The respondent argued that the costs award should not exceed the $750 amount previously requested by the appellant.

The court agreed, fixing costs at $750.

The tenants appealed a decision of the Ontario Rental Housing Tribunal granting an eviction order.

The Divisional Court dismissed the appeal, finding no error of law, misapprehension of evidence, or reasonable apprehension of bias.

The court also refused to admit fresh evidence, applying the Sengmueller test, and upheld the tribunal's exercise of discretion under section 84 of the Act.

The appellant estate executor sought an extension of time to perfect an appeal from a judgment awarding the respondent a lump sum payment under the Succession Law Reform Act.

The respondent argued the judgment was for support and not automatically stayed pending appeal.

The court granted the extension of time but ordered the appellant to pay the judgment amount plus pre-judgment interest in trust as a condition of the extension, finding the judgment was not stayed or alternatively lifting the stay.

Costs of $7,000 were awarded to the respondent.

The applicant employer sought judicial review of an adjudicator's decision under the Employment Standards Act awarding the respondent employee vacation pay for his last two years of employment.

The employer argued the employee had ample down time during the winter months to take vacation in lieu of pay.

The adjudicator found the employee worked year-round and was entitled to vacation pay.

The Divisional Court applied the reasonableness standard of review, found no palpable or overriding error in the adjudicator's findings, and dismissed the application.