ODC 2004

The appellant appealed a decision of the Fire Safety Commission upholding an Inspection Order that imposed conditions on burning brush on his farm.

The appellant argued the Inspector lacked jurisdiction and that the Commission's decision was procedurally unfair because it failed to provide reasons for upholding the conditions.

The Divisional Court found the Inspector had jurisdiction but agreed that the Commission's failure to provide reasons regarding the reasonableness of the conditions breached the duty of procedural fairness.

The appeal was allowed and the matter remitted to the Commission for reconsideration.

The plaintiff sought leave to appeal an order staying his action for statutory accident benefits pending the return of $10,000 in settlement monies and a failed mediation.

The plaintiff argued he was incapacitated at the time of the purported settlement.

The court denied leave to appeal, finding no reason to doubt the correctness of the order, as incapacity does not prevent mediation or the return of funds.

No costs were awarded due to the plaintiff's impecuniosity.

The applicant, Homeland Oasis Corp., sought an adjournment of its application for judicial review against the Town of Markham to obtain documents.

The court found that arguments regarding the merits of the application and the relevance of the documents were premature.

The court granted the adjournment on the condition that the applicant proceed immediately under section 51 of the Municipal Freedom of Information Act to obtain the documents and report back by October 15, 2004.

The appellant appealed an order dismissing his motion to vary child support and rescind arrears totalling $21,343.40, alongside ongoing support of $425 per month.

The Divisional Court considered whether it had jurisdiction under section 19(1)(a) of the Courts of Justice Act, given the combined amount in issue exceeded $25,000.

The court held that the monetary limit applies to the total amount in issue across all subclauses, concluding it lacked jurisdiction and transferred the appeal to the Court of Appeal.

The applicants sought an interim mandatory order requiring the Toronto District School Board to maintain Yifat Barmapov as the Special Needs Assistant for Carly Fleischmann, a child with severe autism, pending a judicial review application.

The applicants argued that replacing the assistant without a transition plan and without ensuring the replacement had Applied Behavioral Analysis (ABA) training would cause irreparable harm.

The court found a strong prima facie case that the Board's actions conflicted with its duties under the Education Act to consult with parents on the Individual Education Plan.

The court granted the interim order, finding that the balance of convenience favoured the applicants and that the child would suffer irreparable harm if the assistant was replaced.

The applicant school board brought a motion to exclude the public, specifically the requester, from the hearing of an application involving sealed materials.

The applicant argued that the requester's presence would render the application moot by revealing the subject matter and that referring to sealed materials without reading them would inhibit counsel's effectiveness.

The Divisional Court dismissed the motion, holding that the normal practice of referring the court to sealed materials without reading them aloud is sufficient and does not inhibit counsel.

The court emphasized that access to the court is a super-ordinate value under s. 135 of the Courts of Justice Act and there was no serious risk of injustice.

The appellant appealed an interlocutory order of a motions judge who gave directions to an Assessment Officer regarding the assessment of costs.

The appellant argued the motions judge was functus officio and could not clarify that the respondents were entitled to non-tariff disbursements after the assessment had already commenced.

The Divisional Court dismissed the appeal, holding that the motions judge retained jurisdiction under the Courts of Justice Act and the Rules of Civil Procedure to implement and clarify his costs order, and was not varying it.

The defendants appealed a decision of Master Kelly.

The Divisional Court dismissed the appeal, finding that the Master correctly applied the law and exercised his discretion.

The court awarded substantial indemnity costs to the responding parties, noting that the appellants filed voluminous, prolix, and largely irrelevant materials, which amounted to an unnecessary onslaught that the responding parties had to defend against.

The applicant sought to appeal a decision dismissing his application under s. 83(1) of the Municipal Elections Act to disqualify the respondent mayor for alleged campaign finance violations.

The Divisional Court dismissed the appeal, applying the Court of Appeal's decision in Audziss v. Santa, which held that an elector lacks standing to bring a private application to challenge campaign finances under s. 83.

The applicant's only remedy was to seek a compliance audit and appeal any refusal to the Ontario Court of Justice.

The appellants, developers of a residential subdivision, appealed an Ontario Municipal Board (OMB) decision requiring them to pay $568,391 as their proportionate share of municipal infrastructure costs previously front-ended by a neighbouring developer.

The appellants argued that the Development Charges Act, 1989 prohibited the imposition of such charges.

The Divisional Court dismissed the appeal, holding that while the Act prohibited imposing a charge by way of agreement, it did not prohibit the OMB from imposing the charge directly as a condition of draft plan approval under section 51(25) of the Planning Act to ensure a fair and equitable allocation of infrastructure costs.

The plaintiff's application for leave to appeal an interlocutory order regarding the attendance of co-defendants at examinations for discovery was dismissed.

The parties made written submissions on costs.

The defendants sought $4,544.90.

The court considered the factors under section 131 of the Courts of Justice Act and Rule 57.01, noting some procedural delays by the plaintiff but also adjusting for duplication of work.

Costs were fixed at $3,500 inclusive of disbursements and GST.

The applicants brought applications for judicial review.

During the hearing, counsel for a third party requested an adjournment to review the filings and potentially seek intervenor status, as the third party had not been served.

The court granted the adjournment to allow the third party to decide whether to intervene.

The court also issued an interim order delaying the effective date of the third party's generic drug listings pending the resumption of the hearing.

The moving party, an agricultural marketing board, sought leave to appeal an interlocutory decision that refused to grant an interim injunction against the responding chicken farmers.

The motions judge had characterized the dispute as private litigation, conflicting with another judge's decision in the same action that granted intervenor status based on substantial public interest.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision, as the claim involved a legislated federal-provincial marketing system and public law principles under the Farm Products Marketing Act.

The applicants, who were social assistance recipients, brought a Charter challenge against a 'lifetime ban' on benefits imposed after convictions related to their benefits.

Before the hearing, a newly elected government repealed the regulations, and the parties settled all issues except costs.

The applicants sought their costs on a public interest basis.

The Divisional Court (majority) awarded the applicants partial indemnity costs of $308,926.84, finding that the litigation was meritorious, the issues were of public importance, and the applicants could not have proceeded without pro bono counsel.

A dissenting judge would have made no order as to costs.

The applicant sought judicial review of the Ministry of Transportation's decision to suspend his driver's licence after he failed to meet the mandatory vision standards due to peripheral vision loss from brain tumor surgeries.

The Divisional Court held that the vision standard under O. Reg. 340/94 is a mandatory legislative requirement.

Because the applicant did not meet this standard, the Ministry had no discretion to issue a licence.

The application for judicial review was dismissed.

The appellant appealed the dismissal of his wrongful dismissal claim.

The trial judge had found that a mutual release signed by the appellant was a complete defence to the action, as there was no evidence of coercion or unconscionability.

The appellant also appealed the trial judge's decision to allow an amendment to the statement of defence at the opening of the trial.

The Divisional Court found no merit in either ground of appeal and dismissed the appeal.

The appellants appealed a decision regarding legal fees charged by their former lawyer for a real estate transaction.

The appellant client testified that a $1,500 fee was agreed upon, which the lawyer did not contradict.

The Divisional Court allowed the appeal in part, reducing the fee award to $1,500.

The court dismissed the appellant's allegations that the lawyer conspired with the purchaser's counsel to defraud her, finding no evidence to support the claims and noting the appellant had signed a mutual release.

The applicant generic drug manufacturers brought an urgent motion under s. 6(2) of the Judicial Review Procedure Act to proceed with an application for judicial review before a single judge of the Divisional Court.

The applicants alleged that a competitor had obtained an unfair advantage regarding the upcoming release of a new schedule for the drug formulary.

The court found that the applicants would suffer irreparable harm due to the permanent loss of market share associated with the first-to-market advantage, and that the prerequisites of s. 6(2) were met.

The application for judicial review was permitted to continue.

Seneca College brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order dismissing its application to dismiss the union's judicial review for undue delay.

The Divisional Court found that the motion judge did not err in exercising his discretion to allow the judicial review to proceed despite a 19-month delay, as there was no actual prejudice to the college.

The motion was dismissed.

The applicants sought judicial review of the investigative process leading to charges by the Professional Conduct Committee of the Institute of Chartered Accountants of Ontario.

On a motion to determine who must file the record under Rule 68.04(1) of the Rules of Civil Procedure, the court held that the Committee was not acting as a court or tribunal in its investigative function.

Therefore, Rule 68.04(1)(b) applied, requiring the applicants to prepare and file the record.

The motion was dismissed.