ODC 2007

The plaintiffs appealed an order dismissing their motion to add the selling dealership as a defendant after the expiry of the two-year limitation period under the Highway Traffic Act.

The plaintiffs argued the discoverability principle applied because they only learned of a potential defect when they received a recall notice from the manufacturer.

The Divisional Court dismissed the appeal, finding the plaintiffs failed to provide any evidence of due diligence in investigating the cause of the accident during the limitation period or in the months following the commencement of the action against the manufacturer.

The City of Ottawa sought judicial review of an Arbitration Board decision that reinstated an employee who had been terminated for excessive absenteeism under a Last Chance Agreement.

The Board found that the employee suffered from a disability (an anxio-depressive state) and that the City discriminated against her by counting disability-related absences toward the threshold in the agreement.

The Divisional Court dismissed the application, holding that the appropriate standard of review was patent unreasonableness and that the Board's findings of disability and prima facie discrimination were supported by the evidence and not patently unreasonable.

The appellant tenant appealed a Small Claims Court decision regarding a residential tenancy dispute.

The tenant had paid a full year's rent upfront, along with security and key deposits.

The trial judge awarded the tenant the return of deposits, compensation for a missing parking space, and $500 in punitive damages, while allowing the landlord's counterclaim for property damage.

On appeal, the Divisional Court upheld the punitive damages and counterclaim findings but found the trial judge erred in failing to award interest on the entire prepaid rent balance as provided in the lease.

The appeal was allowed in part to award $826.97 in interest.

The appellant mother appealed a trial decision making her three children Crown wards, with the youngest child made a Crown ward without access for the purpose of adoption.

The mother argued the trial judge failed to explicitly consider the children's native heritage, erred in finding the youngest child adoptable without expert evidence, and erred in denying sibling access.

The Divisional Court dismissed the appeal, finding the trial judge implicitly considered the native heritage provisions, expert evidence of adoptability was unnecessary for a healthy three-year-old, and the decision to prioritize adoption over sibling access was open to the trial judge.

The appellant appealed the dismissal of its claim against the individual defendant, the sole director and officer of the corporate defendant, for breach of trust under s. 13(1) of the Construction Lien Act.

The appellant argued that where there is a sole director, the onus shifts to that individual to disprove acquiescence in the corporation's breach of trust.

The Divisional Court dismissed the appeal, holding that s. 13(1) does not shift the onus and that actual acquiescence must be proven.

As there was no evidence of the individual defendant's active participation, the appeal was dismissed.

The Municipal Property Assessment Corporation appealed a declaration that a non-profit apartment complex for recovering substance abusers was exempt from municipal taxation as a 'house of refuge' under s. 3(1)-11 of the Assessment Act.

The Divisional Court dismissed the appeal, finding that the application judge made no palpable and overriding error in concluding that the facility's primary purpose was to provide a protected environment and sanctuary from the peril of recidivism into addiction, thus qualifying for the exemption.

The self-represented tenant appealed a decision of the Ontario Rental Housing Tribunal terminating his tenancy and ordering his eviction due to hoarding and creating a fire hazard.

Despite numerous procedural defects and the tenant's failure to perfect the appeal, the court allowed the appeal to be heard on its merits.

The court dismissed the appeal, finding that the tenant raised no question of law and that the Tribunal's factual findings were not patently unreasonable.

The applicants, parishioners of St. Brigid's Catholic Church, sought judicial review of the Archbishop's decision to suppress the parish and dispose of the church property.

The Divisional Court dismissed the application, finding it lacked jurisdiction because the Roman Catholic Church is not a statutory body and the decision was made under private canon law, not affecting any property or civil rights of the parishioners.

The court further noted that even if it had jurisdiction, it would not intervene as canon law did not require a public hearing and the church's closure was driven by insurmountable financial difficulties.

The tenants appealed an order of the Ontario Rental Housing Tribunal awarding them $2,000 after the landlord disposed of their possessions following an eviction.

The tenants sought $30,000 and argued the Tribunal erred by failing to give reasons for the quantum of damages and for not allowing them to proceed in court.

The Divisional Court allowed the appeal, holding that the failure to give reasons is an error of law, and set aside the damages award, allowing the tenants to elect whether to proceed before the Tribunal or a court.

The appellants appealed the decision of the motion judge refusing to certify their proposed class proceedings against the Ontario Northland Transportation Commission regarding amendments to its pension plan.

The appellants alleged the pension plan was an irrevocable trust and the amendments constituted a breach of trust.

The Divisional Court dismissed the appeals, finding that the motion judge made no errors of law, no palpable and overriding errors of fact, and that her conclusions on mixed fact and law regarding common issues, preferable procedure, and representative plaintiffs were reasonable and entitled to deference.

The Law Society brought a motion to quash the appellant's appeal to the Divisional Court.

The appellant sought to appeal a decision of an Appeal Panel that had quashed her appeal of a Hearing Panel's decision to recuse itself.

The Divisional Court granted the motion to quash, finding that the decision appealed from was interlocutory and that the statutory right of appeal under the Law Society Act only applies to final decisions or orders.

The plaintiff bank demanded payment of an outstanding loan and obtained an ex parte order under Rule 20.01(2) to serve a summary judgment motion with its statement of claim.

The defendants sought an adjournment, which the Master refused, granting summary judgment.

On appeal, the defendants argued that Rule 20.01(1) precludes hearing a summary judgment motion before a statement of defence is filed.

The Divisional Court dismissed the appeal, holding that Rule 20.01(2) allows for an accelerated return of the motion where special urgency is shown, requiring the defendant to expeditiously file a defence and respond.

The applicant First Nations sought judicial review to quash a Notice of Completion of an Environmental Study Report regarding the transfer of the Seaton lands by the Ontario Realty Corporation.

The applicants argued the Crown breached its constitutional and statutory duties to consult them about potential aboriginal burial sites on the lands.

The Divisional Court dismissed the application, finding no constitutional duty to consult because the applicants had surrendered their rights to the lands under the 1923 Williams Treaties.

The court also held that the statutory consultation process under the Environmental Assessment Act was procedurally fair, noting the broad nature of the assessment and the effective involvement of the Founding First Nations Circle.

The appellant appealed an interlocutory order dismissing a motion for judgment on executed Minutes of Settlement.

The motions judge had found genuine issues for trial but then added inconsistent reasons stating he would have found in favour of the applicant if he was in error.

The Divisional Court held that the primary finding of genuine issues for trial was supported by the evidence and dismissed the appeal, noting the subsequent comments were unnecessary and beyond the judge's jurisdiction on a Rule 49.09 motion.

The respondent union council brought a motion to quash the applicant employers' application for judicial review of an Ontario Labour Relations Board decision.

The Board had previously ruled that a 1999 settlement agreement was unenforceable against the union council, allowing a related employer application to proceed.

The employers sought judicial review to prohibit the Board from proceeding, arguing the application was an abuse of process and breached the settlement.

The Divisional Court dismissed the motion to quash, finding that the threshold issue of whether the union council was bound by the settlement should be reviewed prior to the Board hearing the merits.

The court also dismissed the union council's alternative motion to strike an affidavit, admitting the evidence for the judicial review.

The tenant appealed a decision of the Ontario Rental Housing Tribunal denying an abatement of rent for an allegedly illegal entry by the landlord.

The landlord had provided a notice of entry specifying a nine-hour window for a smoke detector inspection, and the Tribunal found the tenant had consented to the entry.

The Divisional Court allowed the appeal, holding that a common sense reading of s. 21(2) of the Tenant Protection Act requires the notice to specify a time of entry, not a nine-hour period.

The Court further held that the notice provisions cannot be waived by consent.

The tenant was awarded a $1,000 rent abatement and costs.

The applicant, Geranium Corporation, sought judicial review of a decision by the Information and Privacy Commissioner exempting a letter submitted by a resident to the Town of Innisfil from disclosure under s. 14(1) of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

The applicant argued that the non-disclosure deprived it of knowing allegations made against it prior to a town council decision.

The Divisional Court dismissed the application, finding the Commissioner's interpretation of MFIPPA reasonable.

The court noted that the Commissioner's decision did not prevent the Ontario Municipal Board from ordering production of the document in related proceedings.

The College of Physicians and Surgeons of Ontario brought an application regarding an ongoing tribunal hearing involving the Sleep Disorders Centres.

The Divisional Court dismissed the application as premature, finding that no significant harm or breach of natural justice would occur by refusing to decide the issue, especially since the report in question had already been disclosed.

The Court concluded that all related issues should be determined by the tribunal based on a full and complete record.

The Niagara Escarpment Commission sought leave to appeal a decision of the Ontario Municipal Board (OMB) to the Divisional Court.

The OMB had dismissed a joint motion to dismiss a draft plan of subdivision without a hearing, finding it had jurisdiction despite amendments to the Niagara Escarpment Planning and Development Act.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the OMB's decision because it failed to apply principles of statutory interpretation regarding vested rights and jurisdiction.

The court also found the issue of the OMB's jurisdiction in light of collateral statutory amendments to be of sufficient public importance.

The tenant appealed a decision of the Ontario Rental Housing Tribunal, which had dismissed his claim for general damages on the basis that it lacked jurisdiction.

The tenant and his family had been assaulted by the landlord's friends in an attempt to force them to vacate, breaching the covenant of quiet enjoyment.

The Divisional Court held that the Tribunal erred in law, finding that the residual power to 'make any other order that it considers appropriate' under the Tenant Protection Act includes the jurisdiction to award damages for breach of contract.

The Court allowed the appeal and awarded the tenant $4,000 in damages.