ODC 2008

The appellant casino appealed a decision of the Human Rights Tribunal of Ontario finding it discriminated against the respondent on the basis of sex in a hiring decision for a washroom attendant position.

The Divisional Court upheld the tribunal's finding of prima facie discrimination, agreeing that the Meiorin analysis applied rather than the Law analysis.

The court also upheld the finding that the casino failed to establish a bona fide occupational requirement.

However, the court allowed the appeal in part, finding the tribunal breached the duty of fairness by failing to allow the casino to present evidence and submissions on the appropriate remedy.

The matter was remitted to the tribunal for a rehearing on remedy only.

The Director of the Family Responsibility Office (FRO) appealed a costs award made against it for failing to pay out a surplus of funds accumulated under a family court support order.

The motion judge had found FRO's retention of the funds unreasonable and contrary to its statutory duties.

The Divisional Court allowed the appeal, holding that FRO was not a party to the proceedings and therefore could not be subject to a costs award under section 131 of the Courts of Justice Act.

Furthermore, the court found that FRO's policy of not paying out surplus funds without a court order was not unreasonable.

The plaintiff left the defendant's store without paying for a 65-cent newspaper.

She was confronted by a security officer, returned to the store, and provided identification, but refused to sign a trespass notice.

The security officer restrained and handcuffed her until police arrived.

The plaintiff successfully sued for unlawful confinement in Small Claims Court, being awarded $4,500 in damages and $1,500 in costs.

The defendant appealed, arguing the arrest was justified under the Criminal Code.

The Divisional Court dismissed the appeal, finding the arrest and forcible detention were unlawful as the security officer had no reasonable grounds to arrest the plaintiff merely for refusing to sign a trespass notice.

The plaintiff appealed an interlocutory order removing their lawyer as solicitor of record in a slip-and-fall action.

The motion judge had found the lawyer's conduct in contacting corporate counsel of a non-party to be imprudent and in breach of the Rules of Professional Conduct.

The Divisional Court allowed the appeal, finding that the non-party was not represented by the defendant's counsel and there was no conflict of interest.

The court held that the motion judge mischaracterized the test for removing a solicitor and that the lawyer's conduct did not bring public confidence in the justice system into question.

Toronto Hydro-Electric System Ltd. appealed a decision of the Ontario Energy Board that required any dividend paid by the utility to its parent company be approved by a majority of its independent directors.

The Divisional Court allowed the appeal, finding that the Board lacked both express and implied jurisdiction under the Ontario Energy Board Act, 1998 to impose restrictions on the corporate process for declaring dividends.

The condition was found to be an unwarranted intrusion into corporate governance and contrary to established corporate law principles.

The appellants appealed a decision finding that their land, which was severed in 2000, constituted 'eligible property' for the 2001 taxation year under the Municipal Act.

The appellants argued that the relevant statutory definition, which came into force on January 1, 2001, should only apply to severances occurring after that date.

The Divisional Court dismissed the appeal, holding that the application of the definition to a 2000 severance was implicit by the necessary operation of the municipal tax regime, as 2001 was the first year taxes could be determined on the newly severed parcels.

The defendant, Robert Grenier, sought leave to appeal to the Divisional Court from an order setting aside a default judgment but imposing strict conditions and awarding costs to the insurer, Aviva.

The default judgment was entered after Grenier failed to defend an action arising from a 2001 motor vehicle accident.

The motion judge set aside the default judgment but imposed conditions restricting Grenier's ability to deal with his assets in Quebec and ordered him to pay costs thrown away.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's discretionary decision.

The applicant's application for judicial review of a human rights commission decision was dismissed.

The respondents sought costs of $5,000 each.

The applicant argued she should be relieved of paying costs because her case raised public policy issues and she was impecunious.

The Divisional Court declined to award costs against the applicant, finding it appropriate to relieve her of the obligation due to the public interest issues raised and her difficult financial circumstances.

The defendant municipality sought leave to appeal a motions judge's refusal to grant summary judgment dismissing the plaintiff's claim.

The plaintiff sued for damages after slipping and falling in a pothole while crossing a roadway.

The Divisional Court denied leave to appeal, finding no good reason to doubt the correctness of the motions judge's conclusion that genuine issues of material fact required a trial, particularly regarding the state of repair of the roadway and the municipality's duty of care to pedestrians crossing outside of designated crosswalks.

The Municipal Property Assessment Corporation (MPAC) sought judicial review of an Assessment Review Board decision that directed MPAC to bring a complaint to correct palpable errors in the assessment roll for two severed parcels.

The Board limited the complaint to apportioning the existing $773,000 assessment between the parcels, precluding MPAC from seeking an increased current value assessment of $1,650,000 due to MPAC's delay and resulting prejudice to the taxpayer.

The Divisional Court dismissed the application, finding the Board correctly and reasonably exercised its discretion under section 40.1(b) of the Assessment Act.

The Chief Coroner for Ontario brought a motion to set aside an order requiring him to file a record of proceedings for a judicial review application concerning his refusal to order an inquest into a death.

The Divisional Court held that the Chief Coroner was not exercising a 'statutory power of decision' under the Judicial Review Procedure Act when deciding whether to hold an inquest, as he was determining the public interest rather than legal rights or eligibility for benefits.

Consequently, the Chief Coroner was not required to file a record of proceedings, and the motion was granted.

The appellant church appealed a decision of the Assessment Review Board denying a property tax exemption for a warehouse property adjacent to the church.

The church argued the property was exempt under s. 3(1)3(i) of the Assessment Act as 'land used in connection with' a place of worship, as it was used for storage and youth programs.

The Divisional Court granted the appeal, finding the Board erred in law by asking whether the property was a 'place of worship' rather than whether it was 'land used in connection with' a place of worship.

The matter was remitted to a different Board member for rehearing.

The appellant franchisor appealed a Small Claims Court decision finding it vicariously liable for a fire that occurred at a franchisee's location and caused smoke damage to the respondent's neighbouring business.

The Divisional Court allowed the appeal, finding the trial judge erred in law by characterizing the franchisee as an employee rather than an independent contractor.

The court further held that the trial judge erred by inferring the franchisee's negligence solely from its failure to attend the trial, as there was no evidence as to the cause of the fire.

The action against the franchisor was dismissed.

The Director of the Ontario Racing Commission applied for judicial review of a Commission Panel's decision to exclude a statement made by the respondent licensee during an investigation into illegal drug use in horse racing.

The Panel had excluded the statement on the basis that the investigator wilfully deceived the respondent about his regulatory peril.

The Divisional Court found the Panel's decision unreasonable, as there was no evidentiary basis for the finding of wilful deceit, and quashed the decision, remitting the matter to the Commission for determination on the merits.

The responding party sought costs after successfully defending an application for leave to appeal.

The moving party argued for divided success and that costs should be in the cause.

The court rejected these arguments, emphasizing the need for immediate costs sanctions to encourage negotiated resolutions in high-conflict litigation.

The court awarded the responding party $3,500 in fees plus GST and disbursements.

The applicant sought judicial review of a decision by the Ontario Labour Relations Board.

The Board had dismissed ten applications for certification by the respondent union, finding it was not a construction industry trade union under s. 126(1) of the Labour Relations Act.

The Board also made obiter comments regarding s. 15 of the Act.

Because the applicant was successful before the Board in having the certification applications dismissed, the Divisional Court found the application for judicial review to be moot.

Applying the Borowski factors, the Court declined to hear the application, noting there is no public interest in reviewing obiter comments that did not form the ratio of the Board's decision.

The application was dismissed with costs.

The appellant appealed an order directing the sale of a co-owned property and requiring him to vacate the premises prior to the sale.

The Divisional Court upheld the order directing the sale on the open market, finding no authority to deny a co-owner the right to market exposure.

However, the court varied the order to allow the appellant to remain in possession until closing, noting the applications judge failed to consider the hardship of immediate eviction, the impracticalities of selling a vacant house, and the appellant's willingness to maintain mortgage and expense payments.

The appeal was allowed in part.

Four organizations brought motions seeking intervener status in an appeal by Christian Horizons from a decision of the Human Rights Tribunal of Ontario.

The Tribunal had found that Christian Horizons infringed the rights of an employee and could not rely on the special employment exemption in s. 24.1(a) of the Human Rights Code.

The court granted Egale Canada Inc., the Canadian Council of Christian Charities, and The Evangelical Fellowship of Canada intervener status as friends of the court.

The Ontario College of Catholic Bishops was granted leave to intervene as an added party with a limited right to file additional evidence.

The appellant appealed a decision finding that an undisclosed easement materially affected the respondent's use of the purchased property.

The Divisional Court upheld the lower court's decision, finding no palpable and overriding error in the conclusion that the easement significantly compromised the respondent's specific plans to construct a drive shed.

The appeal was dismissed with costs.

The applicants, municipal employees who held public office, were dismissed for cause and brought applications for judicial review claiming a denial of natural justice.

Following the Supreme Court of Canada's decision in Dunsmuir, the applicants commenced a wrongful dismissal action and sought to consolidate or stay the judicial review applications.

The respondent municipality moved to quash the applications.

The Divisional Court granted the motion to quash, finding that the applicants' employment was governed by contract law and did not fall within the narrow public law exceptions recognized in Dunsmuir.

The court deferred the costs of the applications until the wrongful dismissal action was resolved on the merits.