ODC 2007

The appellants appealed a decision of the Assessment Review Board which classified an entire property as industrial.

The Divisional Court found that the Board erred in law by failing to properly interpret and apply s. 6(1) of O.Reg. 282/98 under the Assessment Act.

Given the Board's findings that the appellant company operated independently, did no manufacturing, and had a separate lease, the portion of the property used by the company should have been classified as commercial.

The appeal was allowed, and the portion of the property was restored to the commercial property class for the 2004 and 2005 taxation years.

The appellants appealed a Master's decision dismissing their motion to set aside service outside Ontario and permanently stay the action on the basis that Ontario was not the forum conveniens.

The Divisional Court determined that the standard of review for a Master's decision on forum conveniens is correctness, as it is vital to the final disposition of the lawsuit.

Applying this standard, the Court upheld the Master's finding that Ontario was the appropriate forum, noting the plaintiff's central location and the lack of evidence showing another jurisdiction was clearly more appropriate.

The appeal was dismissed.

The court issued a brief endorsement to correct a clerical error in its previous reasons dated November 22, 2006.

The judge clarified that by ordering a new trial, the appeal was allowed, not dismissed, and amended paragraph 23 accordingly.

The applicant, a non-profit organization serving the Vietnamese community, sought judicial review of the City's decision refusing permission to fly the flag of the former South Vietnam on a courtesy flagpole at City Hall.

The City's policy restricted national flags to those of nations recognized by the federal Department of Foreign Affairs.

The Divisional Court held that it had jurisdiction to review the decision but dismissed the application.

The court found no violation of freedom of expression under s. 2(b) of the Charter, as the flagpole was not a public forum and the policy did not aim to suppress expression.

The court also rejected arguments based on legitimate expectations and unreasonableness.

The Registrar of the Motor Vehicle Dealers Act appealed a decision of the Licence Appeal Tribunal regarding the respondent's registration.

The Divisional Court allowed the appeal, finding that the Tribunal applied the wrong statutory test under s. 5(1)(b) of the Motor Vehicle Dealers Act by failing to determine if the respondent's past conduct afforded 'reasonable grounds' for belief that he would not carry on business with integrity and honesty.

The Tribunal also erred by failing to give appropriate weight to evidence of the respondent's past criminal conduct involving defrauding customers.

The matter was remitted to a differently constituted Tribunal for a new hearing.

Following a successful appeal by the insurer that decertified a class proceeding due to a change in the law, the parties made submissions on costs.

The insurer sought costs of the appeal and the certification motion, while the representative plaintiff and the Class Proceedings Fund argued for no costs.

The Divisional Court declined to award costs to either party for the appeal, the motion for leave to appeal, or the certification motion, finding that the proceeding raised novel issues of law and matters of broad public interest under section 31 of the Class Proceedings Act.

The appellant appealed a decision of the Social Benefits Tribunal which upheld the Director's finding that she was not a 'person with a disability' under the Ontario Disability Support Program Act.

The Tribunal found her chronic pain did not amount to a substantial impairment.

The Divisional Court allowed the appeal, finding the Tribunal erred in law by assessing the appellant's condition on her 'good days' rather than her recurrent 'bad days', and failed to make findings on the frequency and unpredictability of her bad days.

The matter was remitted for a fresh hearing.

The applicants sought judicial review of a decision by the City of Hamilton to revoke their adult entertainment parlour licence.

The municipality had passed a by-law to reduce the number of such parlours, allowing revocation if a business was not actively carried on within a reasonable time.

The applicants had not opened for business because they were waiting for a liquor licence, which was delayed due to unpaid retail sales tax from another business.

The Divisional Court dismissed the application, finding no procedural unfairness, bias, or bad faith.

The court held that the municipality's finding that the business had not opened within a reasonable time was not patently unreasonable, as the delay in obtaining a liquor licence was not the municipality's responsibility.

The appellant appealed an order dismissing a motion to enforce a settlement.

The respondent had been seriously injured in a school wrestling incident.

The respondent's former solicitor accepted a settlement offer, but the respondent promptly repudiated it, claiming he gave no instructions.

The motion judge found that the appellant's counsel was on notice of 'red flags' regarding the respondent's solicitor's authority, as correspondence indicated the solicitor was taking negotiating positions without consulting his client.

The Divisional Court dismissed the appeal, holding that the motion judge's factual findings were supported by the evidence and justified refusing to enforce the settlement.

The appellant appealed an order denying her motion to set aside an ex parte order that amended a consent order regarding the division of her pension.

The original consent order required the appellant to transfer $60,000 of her pension credits to the respondent to equalize net family property.

Because the pension plan could not transfer credits, the respondent obtained an ex parte order assigning 38.78% of the pension without a $60,000 cap.

The Divisional Court found the motions judge made a palpable and overriding error of fact by concluding the parties intended to transfer a stream of income beyond $60,000.

The appeal was allowed and the ex parte order was set aside.

The appellant wife appealed a review order that reduced her spousal support from $2,700 to $1,350 per month and imposed a termination date.

The parties had been married for 25 years.

The reviewing judge had reduced support based on the respondent husband's expected reduction in income and a finding of 'double-dipping' related to the equalization of his business.

The Divisional Court found that the reviewing judge erred in principle by imposing a time limit on support without analyzing whether the objectives of the Divorce Act were met, noting that time-limited support is only appropriate in unusual circumstances.

The appeal was allowed and the original support order was reinstated.

The City of Ottawa applied for judicial review of an arbitrator's award which found that the City failed to provide uninterrupted eating periods to paramedics, contrary to the Employment Standards Act.

The City argued that the collective agreement provided a greater benefit by paying for all eating periods and using best efforts to keep them uninterrupted.

The Divisional Court dismissed the application, finding that the arbitrator's conclusion that the collective agreement did not provide a greater benefit than the statutory right to time off was not patently unreasonable.

The applicant union sought judicial review of an Ontario Labour Relations Board decision resolving a work jurisdiction dispute over stone masonry work on a construction project.

The Board had ordered the subcontractor to assign the work to the respondent union based on collective bargaining agreement obligations.

The Divisional Court applied the patent unreasonableness standard of review, finding that the Board's consideration of the employer's identity, local area practices, and the general contractor's non-party status was rational and supported by evidence.

The application for judicial review was dismissed.

The Children's Aid Society applied for judicial review of a ruling by the Commissioner of the Cornwall Public Inquiry that allowed public disclosure of CAS documents containing information reported to the Child Abuse Register.

The Commissioner had reasoned that because the documents came from CAS files rather than the Register itself, they were not protected by the confidentiality provision in s. 75(6) of the Child and Family Services Act.

The Divisional Court quashed the ruling, holding that a literal interpretation would lead to an absurdity and frustrate the legislative intent.

The court found that the information in the CAS files and the information protected by the Register's confidentiality provision are co-extensive and must be protected from public disclosure.

The applicant sought judicial review of an arbitrator's decision denying accidental death and 'killed in the line of duty' benefits to the estate of a firefighter who died of renal cancer caused by occupational exposure to toxic substances.

The Divisional Court held that the arbitrator's application of common law insurance principles to conclude the death was not accidental was incorrect and rendered the decision patently unreasonable.

The Court found that the firefighter's death from an occupational illness was unexpected and not caused solely by natural causes, thus qualifying as an accidental death and occurring in the line of duty.

The arbitrator's award was quashed and the employer was ordered to pay the benefits.

The employer sought judicial review of an arbitrator's decision regarding an employee's refusal to follow a directive to go to a hospital emergency department.

The arbitrator found that under s. 33(1) of the Act, the employee had the right to make the initial choice of health professional, and that the 'obey now, grieve later' rule did not apply because grieving later would be meaningless.

The Divisional Court dismissed the application, finding the arbitrator's interpretation of the statute correct and the application of the 'obey now, grieve later' exception reasonable.

The appellant appealed a decision regarding Ontario Disability Support Program benefits, arguing a conflict between sections 47(7) and 64(1)(a) of O. Reg. 222/98 concerning new medical evidence.

The Divisional Court found no conflict, holding that the Tribunal may only consider new medical evidence relating to the appellant's condition at the effective date of the Director's decision.

The appeal was allowed on consent and referred back to a differently constituted Tribunal for a rehearing, with no costs awarded.

The tenant appealed an order of the Ontario Rental Housing Tribunal terminating her tenancy for failure to pay rent and refusing to set aside the termination order.

The tenant had a history of paying rent late due to the timing of her alimony cheques and had breached a previous conditional order requiring payment by the 10th of each month.

The Divisional Court found that the Board Member committed a breach of natural justice by failing to afford the tenant an opportunity to provide evidence or make submissions concerning relief from forfeiture under s. 84 of the Tenant Protection Act.

The appeal was allowed and the matter remitted for a new hearing.

The appellants appealed a trial judgment and brought a motion to admit fresh evidence.

The Divisional Court dismissed the motion for fresh evidence, finding a lack of diligent search and that the evidence would not be conclusive.

The court also dismissed the appeal, holding that the trial judge made no palpable and overriding error in finding that the respondents were unaware the appellants were operating an independent business, given the level of trust and infrequency of visits.

The appellant physician appealed a decision of the Discipline Committee finding him guilty of professional misconduct for falsifying a record and contravening a condition of his certificate of registration.

The Committee had imposed a penalty that included a reprimand, an ethics course, and a requirement to appoint an independent quality advisor for his diagnostic imaging clinics.

The Divisional Court upheld the finding of professional misconduct, concluding it was reasonable based on the evidence that the appellant attached another physician's electronic signature to a quality advisor agreement without authorization.

However, the Court found the penalty requiring an independent quality advisor was unreasonable as it was not rationally connected to the misconduct found, and varied the penalty to remove that condition.