ODC 2007

The plaintiffs sought leave to appeal a motion judge's dismissal of their motion to enforce a settlement under Rule 49.09.

The motion judge had found he could not determine whether a settlement had been reached.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions on the application of Rule 49.09 and no good reason to doubt the correctness of the motion judge's decision, as he properly applied a Rule 20 summary judgment approach to the first step of the settlement enforcement analysis.

The appellant obtained a deficiency judgment against the respondents following a mortgage default and power of sale.

Fourteen years later, the appellant brought an application under rules 60.07(2) and 60.08(2) of the Rules of Civil Procedure for leave to issue a writ of seizure and sale and notices of garnishment.

The motion judge dismissed the application due to the appellant's failure to explain the 14-year delay.

On appeal, the Divisional Court upheld the decision, confirming that a judge has discretion to refuse leave solely on the basis of unexplained delay, even if the 20-year limitation period under the Limitations Act has not expired.

The applicant children's aid society sought judicial review of a tribunal decision that overturned the society's removal of a child from prospective adoptive parents.

The society had removed the child after medical evidence indicated that the child's younger sibling suffered non-accidental trauma consistent with shaken baby syndrome while in the sole care of the prospective adoptive parents.

The court found the tribunal's decision unreasonable because it failed to determine whether the prospective adoptive parents had caused the severe injuries to the sibling, which was highly relevant to assessing the risk of harm to the child.

The tribunal's decision was quashed.

The third parties, who were directors and officers of the plaintiff company, sought leave to appeal an interlocutory order refusing to strike out third party claims brought against them personally by the defendant auditors.

The defendants had been sued for negligence in performing audits and sought contribution and indemnity from the third parties for their alleged tortious personal conduct.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions and no good reason to doubt the correctness of the motions judge's decision, as the pleadings properly founded a reasonable cause of action against the third parties.

The applicants sought an order directing the Commissioner of the Cornwall Public Inquiry to state a case to the Divisional Court regarding whether the proposed evidence of two witnesses fell within the Inquiry's Terms of Reference.

The evidence concerned a sexual assault reported contemporaneously, which the applicants argued did not constitute 'historical abuse' under the mandate.

The majority of the Divisional Court dismissed the application, finding that the Commissioner had not exceeded his jurisdiction and that the evidence was reasonably relevant to the Inquiry's mandate to examine the institutional response to allegations of abuse.

A dissenting opinion would have granted the application.

The appellant appealed a motion judge's order requiring her to disclose a defence medical report and surveillance video obtained in a prior tort action to the respondent in her current accident benefits claim.

The motion judge had held that Rule 30.1.01 constrained the use of such evidence but not its disclosure.

The Divisional Court allowed the appeal, holding that the deemed undertaking rule prohibits collateral disclosure as well as collateral use to protect the privacy interests of litigants.

The court directed that any request for relief from the deemed undertaking must be brought before a motions judge under subrule 30.1.01(8).

The appellant appealed the dismissal of his motion for summary judgment in a defamation action brought by the respondent.

The respondent's action was based on testimony the appellant gave at a Real Estate Council of Ontario (RECO) disciplinary hearing.

The Divisional Court allowed the appeal, holding that the RECO Disciplinary Committee is a statutory tribunal and the appellant's testimony was protected by absolute privilege under the witness immunity rule.

As there was no genuine issue for trial, summary judgment was granted dismissing the action.

The applicants sought substantial indemnity costs of approximately $116,000 following their successful challenge to provisions of the Building Code Act, 1992 and the Building Code Regulation.

The applicants argued they were public interest litigants.

The court agreed, finding that the applicant Association was virtually compelled to bring the application to defend its statutory mandate to regulate professional engineers.

The court awarded substantial indemnity costs but reduced the quantum to $75,000, finding the claimed amount exceeded what was fair and reasonable for a two-day hearing.

The appellant appealed a Small Claims Court judgment awarding the respondents damages for goods damaged during a move using a rented truck.

The Divisional Court upheld the finding of liability and the sufficiency of evidence for the damages.

However, the court found the trial judge erred by failing to account for depreciation of the damaged items and by awarding the cost of the truck rental and mileage, which amounted to unjust enrichment.

The damages award was reduced accordingly.

The applicant employer sought judicial review of a Board of Arbitration decision finding it had discriminated against a unionized security officer.

The employer had stopped offering the employee temporary management shifts after she attended a union convention.

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

The Court found the arbitrator's interpretation of the collective agreement's anti-discrimination clause was logical and rational.

The application for judicial review was dismissed.

The applicant suffered a workplace injury and was granted Future Economic Loss benefits.

The Workplace Safety and Insurance Board calculated his pre-injury earnings without including his employer's contributions to his union's health and pension plans.

The applicant appealed to the Workplace Safety and Insurance Appeals Tribunal, which upheld the decision.

The applicant applied for judicial review.

The Divisional Court granted the application, finding the Tribunal's decision patently unreasonable because it failed to consider the legislative history and the government's explanation for the applicable statutory provisions.

The appellant bank appealed from Small Claims Court decisions where the trial judges declined to award contractual interest and pre-proceeding collection expenses on uncontested credit card debt claims.

The Divisional Court allowed the appeals, holding that pre-proceeding collection expenses calculated as a fixed percentage of the debt constitute a liquidated demand for money.

The Court also held that, absent exceptional circumstances, pre-judgment and post-judgment interest must be awarded at the rate stipulated in the credit card agreement.

The appellant appealed an order dismissing its motion for judgment on an alleged settlement.

The respondent's counsel had made a settlement offer based on instructions from an individual who managed the recreation centre but lacked authority to settle the litigation.

The appellant accepted the offer.

The motion judge found that the settlement was concluded by mistake, as the respondent never authorized the offer, and exercised his discretion not to enforce it.

The Divisional Court upheld the decision, finding no error in the motion judge's appreciation of the evidence or application of the legal principles regarding mistake and agency.

The Niagara Escarpment Commission appealed an Ontario Municipal Board decision allowing a subdivision application to proceed to a hearing.

The central issue was whether the Board had jurisdiction under the Planning Act despite amendments to the Niagara Escarpment Planning and Development Act requiring a development permit before any development decision.

The Divisional Court allowed the appeal, finding the Board erred in law by failing to address the mandatory language of the amended legislation.

The Court further held that the respondent did not have a vested right to a hearing before the Board.

The appellants appealed a Small Claims Court decision awarding the respondent $10,000 in damages for false arrest, false imprisonment, and negligent investigation.

The respondent had been arrested for allegedly breaching a bail condition by speaking at a public demonstration.

The Divisional Court allowed the appeal, finding that the trial judge erred by inappropriately using hindsight and conflating the test for negligence with the objective test for reasonable grounds for arrest.

The court held that the arresting officers had reasonable and probable grounds to arrest the respondent based on the information available to them at the time, and therefore met the standard of care.

The moving party defendants sought leave to appeal a motions judge's refusal to strike out the plaintiff's claims for 'knowing assistance of breach of fiduciary duty' and 'assisting or facilitating breach of contract' in a proposed class action arising from investments in a hedge fund.

The Divisional Court granted leave to appeal, finding that there were conflicting decisions regarding the existence of the tort of assisting breach of contract, and good reason to doubt the correctness of the decision regarding knowing assistance of breach of fiduciary duty given the plaintiff was not a client of the defendants.

The issues were deemed to be of general importance to the investment industry.

The appellant appealed a decision of the Municipal Board regarding the revocation of a licence, arguing the Board erred in law by failing to understand that the revocation was tainted by prior allegedly unlawful actions by the Ministry.

The Divisional Court dismissed the appeal, finding no error of law in the Board's decision and noting that the Board's conclusion that the appellant was not in compliance with licence conditions was a finding of fact that could not be disturbed.

The applicant teachers' federation sought a stay of a Minister of Labour order pending judicial review.

The order revoked a previous designation allowing a multi-site joint Health and Safety Committee, requiring the school board to establish site-based committees at each of its 94 schools.

Applying the RJR Macdonald test, the court found there was a serious issue to be tried, but the applicant failed to demonstrate clear and non-speculative irreparable harm.

The balance of convenience favoured the respondent school board, as the multi-site system was not working and impeded its ability to comply with health and safety obligations.

The motion for a stay was dismissed.

The applicant brought a motion to stay a Board decision granting a liquor license to a large nightclub pending appeal.

The applicant argued that the influx of patrons would jeopardize public safety in the entertainment district.

The court applied the RJR-Macdonald test and found a serious issue to be tried, but concluded the applicant failed to establish irreparable harm, as the safety concerns were speculative and subject to other regulatory regimes.

The balance of convenience favoured the respondent due to substantial financial investments.

The motion for a stay was dismissed.

The appellants were successful in obtaining a notable reduction in the costs award against the respondents and sought their costs.

The Divisional Court considered the divided success on various issues, including the leave motion, interest date, substantial indemnity, and fresh evidence.

The court fixed the appellants' costs at $35,000, apportioning liability between the Yemec respondents (two-thirds) and the Bungaro respondents (one-third) to reflect their different levels of participation and liability.