ODC 2007

The appellant, a recipient of disability benefits, received a settlement for a personal injury action that included prejudgment interest.

The Director determined that the prejudgment interest was not exempt income under the Ontario Disability Support Program Act, reducing the appellant's benefits.

The Social Benefits Tribunal affirmed this decision.

On appeal, the Divisional Court held that prejudgment interest is paid 'for' pain and suffering as part of the overall compensation package.

The appeal was allowed, and the prejudgment interest was deemed exempt income.

The applicant sought declaratory or prerogative relief regarding whether she had elected to receive WSIB benefits and whether such an election was valid.

The Divisional Court dismissed the application as premature, noting that the Workplace Safety and Insurance Board and the Workplace Safety and Insurance Appeals Tribunal had not yet decided these issues.

The Court emphasized that the Board should provide election forms to workers as soon as it becomes aware of an illness to ensure they seek legal advice promptly.

The applicant sought judicial review of a college appeal committee's decision upholding his involuntary withdrawal from a nursing program.

He alleged a reasonable apprehension of bias because one panel member, the college registrar, had previously reviewed his file and discussed his case with him.

A majority of the Divisional Court found that the prior undisclosed involvement did create a reasonable apprehension of bias.

However, the Court unanimously dismissed the application, concluding that the applicant had impliedly waived any objection by failing to raise the issue at the hearing despite being represented by counsel.

Following a successful application for judicial review that prohibited the Ontario Human Rights Tribunal from hearing a complaint, the applicant sought substantial indemnity costs against the Commission and the Tribunal for both the judicial review and the underlying human rights proceedings.

The Divisional Court held it lacked jurisdiction under the Human Rights Code or the Courts of Justice Act to award costs for the tribunal proceedings.

For the judicial review, the court awarded partial indemnity costs of $20,563.57 against the Commission alone, finding the hours claimed by the applicant excessive and declining to award costs against the Tribunal as it had not engaged in misconduct or taken an adversarial position on the merits.

The appellant insurance company appealed a trial decision finding that a vehicle was driven without the owner's consent at the time of an accident.

The trial judge accepted the owner's evidence that his daughter did not have permission to use the truck while he was away, and that he had left the keys at his son's residence to prevent her from using it.

The Divisional Court found no basis to interfere with the trial judge's credibility findings and conclusion.

The appeal was dismissed.

The appellants appealed a decision dismissing their appeal of the Chief Building Official's refusal to issue a building permit for a single-family home.

The property had been inadvertently rezoned to permit such a home due to a clerical error, which the Town subsequently corrected with an amending by-law.

The Divisional Court dismissed the appeal, holding that the Chief Building Official correctly considered the pending, more restrictive amending by-law as 'applicable law' under the Building Code Act when making her decision, as it would have retroactive effect once appeals were exhausted.

Following a successful appeal by the condominium corporation that dismissed the respondent's Small Claims Court action regarding a special assessment, the court determined the costs of the proceedings.

The appellant sought over $52,000 in costs on a claim worth $5,350.29.

The court rejected the application of the condominium declaration for substantial indemnity costs because the respondent had sold her unit before suing.

The court also held that Rule 49.10 does not apply to offers made pending an appeal.

Emphasizing proportionality, the court limited the Small Claims Court costs to the statutory 15% maximum plus disbursements, and fixed the appeal costs at $3,000 plus disbursements, for a total award of $7,452.73.

The appellants appealed a costs order of $691,304.74 on a substantial indemnity basis, awarded after the respondents successfully moved to set aside an ex parte Mareva injunction and Anton Piller order.

The Divisional Court upheld the substantial indemnity scale, finding the appellants' failure to make full and frank disclosure was not inadvertent.

However, the court found the motion judge erred in failing to properly analyze the bills of costs and apply the Boucher principles to ensure the quantum was fair and reasonable.

The court reduced the costs awarded to the Yemec respondents by 40% and to the Bungaro respondents by 20%.

The court also held that post-judgment interest on the costs award should run from the date of the costs order, not the date of the decision on the merits.

The applicant sought judicial review of an interim decision by the Human Rights Tribunal of Ontario, which found it had jurisdiction to hear a complaint regarding a withdrawn job offer following a positive pre-employment drug test for marijuana.

The Divisional Court held that the Tribunal erred in law by failing to dismiss the complaint, as recreational marijuana use without actual or perceived disability does not fall under the protected ground of disability in the Human Rights Code.

The Court granted an order of prohibition preventing the Tribunal from hearing the complaint.

The applicant union local sought judicial review of an Ontario Labour Relations Board decision that allowed the parent union to assume jurisdiction over a specific construction project.

The Board had proceeded by way of an expedited consultation process rather than a full hearing, relying on pleadings and oral submissions.

The Divisional Court dismissed the application, finding that the Board's Rule 41 permitting consultations was not ultra vires, the Board did not breach natural justice or procedural fairness, and its decisions on both procedure and the merits were not patently unreasonable given the specialized labour relations context and the need for expedition.

Following the dismissal of the appellant's appeal from a dismissed motion for summary judgment, the court determined the issue of costs.

On consent, no costs were awarded for the motion for leave to appeal or the appeal itself.

Regarding the underlying motion for summary judgment, the court declined to award costs to the successful respondent because it had failed to file a key affidavit for tactical reasons.

The Ministry of the Attorney General sought judicial review of two orders by the Information and Privacy Commissioner requiring the disclosure of total dollar figures for legal services rendered to other ministries.

The Ministry argued the information was protected by solicitor-client privilege under s. 19 of the Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the applications, finding the IPC correctly applied the rebuttable presumption of privilege test from Maranda v. Richer and reasonably concluded the presumption was rebutted because disclosing the aggregate amounts would not reveal privileged communications.

The plaintiff, an Ontario resident, sued his former employer for wrongful dismissal.

The employment contract contained a non-exclusive attornment clause to the State of Washington.

The Master stayed the action on the basis of forum non conveniens, finding the clause shifted the onus to the plaintiff to prove Ontario was the more appropriate forum.

On appeal, the Divisional Court held the Master erred in law; the onus does not shift when the validity of the clause is challenged based on public policy and unequal bargaining power.

The appeal was allowed and the stay dismissed.

The applicant sought judicial review of a decision by the Ontario Human Rights Commission not to refer his discrimination complaint against his former employer to the Human Rights Tribunal.

He named the employer, various employees, the Commission, Commission employees, and the Crown as respondents, seeking damages in tort and other relief.

The respondents brought motions to strike the claims and remove parties.

The Divisional Court held that it has no jurisdiction to award damages on an application for judicial review.

The court also found that the Crown and Commission employees did not exercise a statutory power of decision and were not proper parties.

The respondents' motions were granted, the applicant's affidavit was struck, and the applicant's motions for additional information were dismissed.

The applicant sought judicial review to quash a decision of the Ontario Labour Relations Board, which had ruled that a law firm was not in a conflict of interest and could continue representing the respondents.

The law firm had previously represented the applicant local union before it was placed in trusteeship.

The Divisional Court applied the pragmatic and functional approach, determining the standard of review was correctness.

Applying the MacDonald Estate test, the Court found the law firm possessed relevant confidential information and there was a risk of prejudice to the former client.

The application was granted, the Board's decision was quashed, and the law firm was ordered to cease acting against its former client.

The moving party sought leave to appeal a decision of the Ontario Municipal Board that approved Official Plan and zoning by-law amendments permitting a mixed residential and commercial development on adjacent lands.

The moving party argued the Board erred in law by failing to apply the 2005 Provincial Policy Statement, exceeded its jurisdiction by extending the re-designation to intervening properties, and breached natural justice by refusing to admit late noise evidence.

The Divisional Court dismissed the motion, finding no good reason to doubt the correctness of the Board's decision on any point of law, and awarded costs to the responding parties.

A journalist requested electronic data from the police board's databases, asking that names be replaced with randomly-generated unique numbers.

The board refused, arguing this would require the creation of a new record.

The Information and Privacy Commissioner ordered the board to issue access decisions.

On judicial review, the Divisional Court quashed the Commissioner's order, finding that the Assistant Commissioner failed to consider whether the requested record could be produced by means 'normally used by the institution' as required by section 2(b) of the Municipal Freedom of Information and Protection of Privacy Act.

The appellant home inspection company appealed a Small Claims Court judgment awarding the respondents $9,148.58 for gross negligence in failing to discover a latent water leakage defect.

The Divisional Court upheld the trial judge's finding of gross negligence, noting the inspector observed poor exterior water management and reported normal moisture levels despite dry walls.

The court also refused to enforce the contract's limitation of liability clause, finding it was a contract of adhesion presented after much work was done, and the gross negligence constituted a fundamental breach that deprived the respondents of the entire benefit of the contract.

The appellants appealed a decision of the Licence Appeal Tribunal which directed the Registrar to carry out a proposal to refuse and revoke their motor vehicle dealer registrations.

The Tribunal had held that the Registrar had the onus to show he believed there were reasonable grounds for the proposal, and that the Tribunal owed deference to the Registrar's decision.

The Divisional Court allowed the appeal, finding that the Tribunal erred in law by misapprehending its role.

Under the Motor Vehicle Dealers Act, the Tribunal is required to make its own assessment of the facts and has the explicit statutory authority to substitute its opinion for that of the Registrar, owing no deference to the Registrar's initial proposal.

The plaintiff corporation sued the defendants for approximately $180,000 for unpaid invoices.

The defendants brought a motion for security for costs, which was initially dismissed on the basis that it would defeat the plaintiff's claim.

On appeal, the Divisional Court found that the motion judge erred by failing to consider whether the plaintiff had access to funds through its sole shareholder.

The court determined that the plaintiff was not impecunious in the extended sense and ordered the plaintiff to post $50,000 in security for costs.