ODC 2004

The applicants moved to set aside two orders regarding their claimed beneficial interest in their son and daughter-in-law's matrimonial home.

The first order converted their application into an action, and the second ex parte order vested exclusive title in the daughter-in-law after the applicants failed to comply with the first order's filing deadlines.

The Divisional Court set aside the ex parte order under Rule 37.14(1)(a) because the applicants had indicated an intention to appeal, but affirmed the initial order as the motion to set it aside was not brought forthwith.

The tenant brought a motion appealing the decision of Keenan J., which upheld a Tribunal order evicting her for disruptive conduct.

The tenant argued the Tribunal erred in finding her conduct continued after receiving an N5 notice, misapplied section 84(1) of the Tenant Protection Act, and failed to properly assess the landlord's duty to accommodate her disability under the Human Rights Code.

The Divisional Court dismissed the motion, finding overwhelming evidence that the landlord accommodated the tenant's disability to the point of undue hardship and that the Tribunal made no errors of law.

The appellant mortgagee appealed a trial judgment that declared its mortgage void and granted priority to construction lien claimants.

The trial judge found the mortgage contravened the financial assistance provisions of the OBCA, the Fraudulent Conveyances Act, and the Assignments and Preferences Act, as the mortgagor was insolvent and the mortgagee failed to conduct due diligence.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or application of legal principles.

A cross-appeal by a lien claimant regarding trial costs was allowed, and its costs were increased.

The applicant brought a motion to stay proceedings before the Alcohol and Gaming Commission, alleging that its witnesses had been interfered with by their supervisor.

During an adjournment, the LCBO retained an investigator to interview the witnesses.

The applicant sought to compel the investigator's attendance and the production of witness statements to support its stay motion.

The Commission refused to issue the summons, finding the evidence irrelevant.

On judicial review, the Divisional Court held that the Commission breached natural justice by precluding the applicant from leading material evidence.

The Court ordered the Commission to issue a summons for the investigator and require the production of the witness statements, finding they were not protected by solicitor-client or litigation privilege.

The parties were unable to agree on the quantum of fixed costs awarded to the respondent on a partial indemnity scale following a previous decision.

The respondent claimed $25,580 based on a draft bill of costs totalling $32,822.

The applicant argued the claimed hours were excessive and suggested $8,000.

The court fixed costs payable by the applicant to the respondent at $17,500 for fees and $580 for disbursements, plus applicable GST.

The applicant union sought judicial review of an arbitration board decision that upheld the constitutionality of s. 58(5)(c) of the Employment Standards Act.

The provision denied severance pay to employees whose contracts were frustrated due to illness or injury.

The Divisional Court found that the provision discriminated against severely disabled employees, violating s. 15(1) of the Charter, and was not saved by s. 1.

The offending words were struck down, and the disabled employee was awarded severance pay.

The Ministry of Northern Development and Mines sought judicial review of two orders by the Information and Privacy Commissioner requiring the disclosure of project evaluation reports.

The Ministry argued that the Commissioner misinterpreted the 'advice or recommendations' exemption under section 13(1) of the Freedom of Information and Protection of Privacy Act.

The Divisional Court applied a reasonableness standard of review, finding that the Commissioner's interpretation—that 'advice' and 'recommendations' have similar meanings and require a suggested course of action—was reasonable.

The applications for judicial review were dismissed.

The applicant sought an order under Rule 16.04(1) of the Rules of Civil Procedure to dispense with personal service of a Notice of Application for Judicial Review and Summonses on a Vice-Chair of the Ontario Labour Relations Board and another individual.

The Divisional Court dismissed the motion, finding that the Vice-Chair is immune from such process and the other individual made no decision amenable to judicial review.

The court directed the applicant to amend the title of proceedings if the application is to proceed.

The applicant physician sought judicial review of a decision by the College of Physicians and Surgeons of Ontario restricting his practice to surgical assisting for six months.

The restriction followed a peer review and a Physician Review Program (PREP) assessment.

The Divisional Court found that the College breached procedural fairness by failing to refer a second peer assessment to a Review Panel, providing selective information to the PREP director, and refusing to disclose the PREP test and video recordings to the applicant.

The decision imposing conditions on the applicant's certificate of registration was quashed.

The defendants sought leave to appeal an interlocutory costs order that denied them costs despite being successful on a motion for an interlocutory injunction.

The motions judge had denied costs on the basis that counsel intentionally underestimated the length of the motion to get on the list.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the decision as it extended previous case law by denying costs to successful parties who had not misled the judge hearing the motion.

The court also found that the appropriate use of cost sanctions for time misestimates is an issue of public importance.

The plaintiff appealed a Master's order compelling answers to discovery questions to the Divisional Court, characterizing it as a final order.

The defendants brought motions to quash the appeal, arguing the order was interlocutory and the proper appeal route was to a Superior Court Judge.

The Divisional Court agreed, finding that an order compelling discovery answers does not finally dispose of the substantive rights of the parties and is therefore interlocutory.

The appeal was quashed.

The appellant sought to raise a Charter issue on appeal from a decision of the Discipline Committee of the Ontario College of Teachers.

The appellant had failed to serve a Notice of Constitutional Question before the Discipline Committee, which refused to hear the issue.

The Divisional Court declined to exercise its discretion to hear the Charter issue for the first time on appeal, finding that the appellant was aware of the notice requirement and that the Attorney General would be prejudiced by the lack of an evidentiary record.

The appellant, the Corporation of the City of Kawartha Lakes, appealed a correcting decision made by a referee regarding appeals from the Ontario Drainage Tribunal.

The appellant sought to have the correcting decision set aside and the original decision confirmed.

The Divisional Court dismissed the appeal, finding that there was sufficient confusion at the time of the hearing to justify the correcting decision.

The court held that issues regarding the appropriateness, timeliness, and jurisdiction of the respondents' motion under section 47 of the Drainage Act were matters for the referee to determine.

The appellant's truck became mired in soft ground and sustained severe mechanical damage to its rear differential gear during various attempts to extricate it using other vehicles.

The appellant's insurer denied coverage, and the Small Claims Court dismissed the appellant's action for indemnification.

On appeal, the Divisional Court found that the trial judge erred in law by interpreting Section 6 of the insurance policy as requiring an actual impact or accident with another motor vehicle.

The court held that the trial judge should have applied the Amos test to determine if the damage was caused by the use or operation of the other vehicles involved in the towing attempts.

The appeal was allowed and a new trial ordered.

The applicants sought judicial review of a Licence Suspension Appeal Board decision that directed the refusal of their motor vehicle inspection licences.

They also brought a motion to adduce new evidence.

The Divisional Court dismissed the motion for new evidence, finding it irrelevant and lacking an explanation for why it was not presented earlier.

The court also dismissed the application for judicial review, noting that the applicants had failed to pursue their statutory right of appeal under the Highway Traffic Act and had not proceeded in a timely manner.

The plaintiffs appealed a Master's order dismissing their action against one defendant for failing to pay costs and serve an Affidavit of Documents.

The plaintiffs sought to introduce fresh evidence explaining that the defaults were caused by their previous counsel and that their newly retained counsel did not have sufficient time to prepare for the dismissal motion.

The Divisional Court admitted the fresh evidence, finding the due diligence test was met.

The court held the Master erred in denying an adjournment, as the lack of written material led to an erroneous conclusion about the plaintiffs' conduct.

The appeal was allowed and the action reinstated.

The appellants, a builder and developer, appealed a Small Claims Court decision dismissing their claim for $6,814.84 against the respondent purchasers.

The appellants sought reimbursement for costs incurred after the respondents refused to voluntarily grant a maintenance easement to their neighbours, arguing this breached the Agreement of Purchase and Sale.

The Divisional Court dismissed the appeal, finding that the relevant clause in the agreement only pertained to utility easements, not maintenance easements, and therefore the respondents had not breached the contract.

The appellant landlord appealed a decision of the Ontario Rental Housing Tribunal finding that the respondents' homes were 'land lease homes' in a 'land lease community' under the Tenant Protection Act, 1997.

The respondents had purchased their homes and entered into 99-year land leases.

The Divisional Court dismissed the appeal, holding that the respondents were 'owners' of their dwellings within the meaning of the Act, as the agreements shifted the primary obligations of ownership to them and explicitly stated the buildings remained their property during the lease term.

The court also confirmed that common use elements are not a prerequisite for a land lease community.

The applicant union sought judicial review of an arbitrator's award dismissing a grievance regarding holiday and overtime pay for work performed on Remembrance Day.

The arbitrator had concluded that there was an apparent contradiction between two articles of the collective agreement and interpreted them such that one applied to scheduled work and the other to unscheduled work.

The Divisional Court found the arbitrator's conclusion to be reasonable based on the record and dismissed the application, fixing costs at $5,000.

The applicant sought judicial review of a Director's Delegate's decision which found her claim for statutory accident benefits was statute-barred.

The Director's Delegate had concluded that the insurer's notice of refusal, while containing technical defects and incorrect reasons, was 'substantially clear' and triggered the limitation period under s. 281(5) of the Insurance Act.

The Divisional Court quashed the decision, holding that a notice of refusal must be strictly clear and unequivocal, and must provide the correct reasons for refusal to trigger the limitation period.

The court found that the Director's Delegate erred in law by applying a 'substantially clear' standard.