ODC 2006

The moving party union sought to quash the responding party employer's application for judicial review of a preliminary arbitration award on the basis of undue delay.

The employer had delayed 16 months in commencing the application and 21 months in perfecting it.

Applying the test for undue delay, the court found that while the delay was substantial, there was no actual prejudice to the union because the underlying employment relationship had ceased years prior due to bankruptcy, and the issue was a pure question of law regarding related employer status.

The motion to quash was dismissed, and the employer's cross-motion to have its application heard together with a related application was granted.

The applicants sought judicial review and an order of mandamus to compel the Minister of Natural Resources to require public consultation and amendments to Forest Management Plans before two forestry companies could restructure their operations, close certain sawmills, and redirect wood supply.

The Divisional Court dismissed the application, finding that the Plans regulate forest operations and sustainability, not the processing of harvested wood at specific mills.

As the restructuring did not change the forest operations or impact sustainability, no Plan amendments or public consultations were required under the Crown Forest Sustainability Act.

The respondents boarded their dog with the appellant kennel while on vacation.

The dog escaped from the kennel's enclosed play area and was lost.

The trial judge found the kennel negligent and awarded damages, including an amount for pain and suffering.

The kennel appealed, arguing the wrong standard of care was applied and that damages for pain and suffering cannot be awarded for the loss of a pet, which is considered a chattel.

The Divisional Court dismissed the appeal, finding that under the law of bailment, the kennel failed to prove the loss occurred without neglect.

The court also upheld the award for mental distress, confirming it is a proper head of damages when the underlying circumstances are proven.

The applicants, litigation guardians for severely developmentally delayed adults residing in Schedule I facilities, sought judicial review of the Minister of Community and Social Services' decision to close the remaining institutions.

The applicants argued the Minister lacked statutory authority under the Developmental Services Act to close the facilities.

The Divisional Court held that the Minister's broad discretionary power to establish and maintain facilities included the power to close them.

However, the Court declared that the consent of the incapable residents' substitute decision makers is required before they can be transferred to community placements, invoking the parens patriae jurisdiction to protect their fundamental interests.

The plaintiff subcontractor sued the defendant contractor in Small Claims Court for unpaid invoices.

During closing arguments, the trial judge raised the issue of a trust claim under the Construction Lien Act, which had not been pleaded.

The trial judge found the defendant liable for breach of trust.

On appeal, the Divisional Court held that while the Small Claims Court has jurisdiction to hear trust claims within its monetary limits, it was unfair to the defendant to grant judgment on an unpleaded trust claim, as it deprived him of the opportunity to adduce evidence to discharge his burden as trustee.

The appeal was allowed and a new trial ordered.

The appellant appealed a trial decision finding it suffered no damages after its loader was damaged by the defendant.

The trial judge had characterized the appellant's payments for the damaged machine as lease costs rather than contributions toward a purchase under a conditional sales contract.

The Divisional Court allowed the appeal, finding the appellant was forced to incur the expense of renting an alternative loader while waiting for the insurance company to write off the original machine, and awarded damages for the rental costs.

The defendants, Nortel Networks Corporation and John Roth, appealed an interlocutory order that struck only portions of the plaintiff's statement of claim.

The Divisional Court allowed the appeal and struck the entire statement of claim against the appellants, finding it disclosed no reasonable cause of action.

The court held that the plaintiff failed to plead the essential elements of negligent misrepresentation, failed to plead material facts to overcome the business judgment rule regarding alleged mismanagement, and lacked standing as an individual shareholder to bring claims for conversion of company property.

The applicant sought costs following a successful judicial review application.

The parties agreed that costs should be awarded on a partial indemnity basis.

The applicant claimed $10,796.66, while the respondent argued for a lower amount.

The Divisional Court considered the respondent's conduct, which might have warranted solicitor and client costs, but also noted that the arguments were substantially similar to those at the lower level, allowing for economies in preparation.

Applying the principle of reasonable expectations, the court awarded the applicant $9,203.49 in total costs.

The appellant appealed a Small Claims Court decision dismissing his claim against the respondent for negligent vehicle maintenance.

The appellant alleged the respondent failed to properly tighten a drain plug during a fluid change, causing his vehicle to break down 11 months later.

The Divisional Court upheld the trial judge's finding that the appellant failed to prove causation on a balance of probabilities.

The court also found no error in the admission of a downloaded maintenance manual into evidence.

The appeal was dismissed with costs.

The City of Hamilton applied for judicial review of an arbitrator's award which found that the City was required to pay the Ontario Health Premium on behalf of its employees under the collective bargaining agreement.

The Divisional Court determined that the appropriate standard of review was patent unreasonableness, as the arbitrator was interpreting the collective agreement, not the legislation.

The Court found the arbitrator's conclusion that the premium constituted a 'cost' of the medicare plan under the agreement was not patently unreasonable, and would have been upheld even on a correctness standard.

The application for judicial review was dismissed.

The applicants sought urgent judicial review of an interim order by the Human Rights Tribunal of Ontario that required them to call ten specific witnesses and produce will-say statements for them.

The Tribunal had amended the complaint mid-hearing and ordered the applicants to call these witnesses to bridge the evidentiary gap.

The Divisional Court granted the application and quashed the order, holding that the Tribunal's inquisitorial approach breached natural justice and procedural fairness by depriving the applicants of their right to control their own defence in an adversarial proceeding.

The appellant appealed the dismissal of her motion for summary judgment against the respondent bank.

The dispute involved funds in a bank account originally owned by the appellant's mother, which the bank had transferred to the appellant's brother.

A Kuwaiti court had ruled that the funds belonged to the appellant.

The Divisional Court found that the Kuwaiti judgment was final and that the bank was a privy to the brother, meaning it would be bound by the foreign judgment through issue estoppel.

However, the appeal was dismissed because the appellant's pleadings had not been amended to properly base the claim on the foreign judgment.

The appellant purchased four Koi fish from the respondent's store and placed them in his pond.

Shortly after, all 23 of his Koi died.

The appellant sued in Small Claims Court, alleging the new fish introduced Koi Herpes Virus, relying on an internet article.

The trial judge dismissed the claim, finding the appellant failed to prove causation on a balance of probabilities, as there was no expert evidence or testing of the dead fish, and other factors like overcrowding could have caused the deaths.

The Divisional Court dismissed the appeal, finding no error in the trial judge's application of the balance of probabilities, the Sales of Goods Act, or the doctrine of res ipsa loquitur.