ODC 2008

The defendants, eight major financial institutions, successfully defended an appeal of a decision denying certification of a class action regarding mortgage contracts.

The defendants sought their costs of the appeal.

The plaintiffs argued that no costs should be awarded, asserting the proceeding was a test case and involved a matter of public interest under section 31(1) of the Class Proceedings Act.

The Divisional Court rejected the plaintiffs' arguments, finding the case was not a test case, did not raise a novel point of law, and was not a matter of public interest, but rather involved individual commercial mortgage contracts.

The court awarded the defendants modified partial indemnity costs fixed at $20,000 per defendant.

The tenant applied for leave to appeal an interlocutory order that imposed the payment of $74,555.50 as a term of adjourning the mortgagee's application for possession and arrears.

The tenant argued the motions judge failed to consider its claim for set-off based on repair expenses.

The Divisional Court dismissed the application for leave, finding no reason to doubt the correctness of the discretionary order and no conflicting decisions on the issue of a tenant's right to set-off against a mortgagee in possession in these circumstances.

The appellant chiropractor appealed a Discipline Committee decision finding him guilty of professional misconduct and imposing a suspension.

The misconduct related to administering Hyperbaric Oxygen Therapy to a mentally disabled patient without proper consent, which was found to be outside the scope of chiropractic practice.

The appellant argued the Committee erred by making findings on uncharged matters, failing to give adequate notice, and erring in its credibility assessment.

The Divisional Court dismissed the appeal, finding the appellant had adequate notice through pre-hearing disclosure and that the Committee's credibility findings and penalty were reasonable.

The appellant tenant appealed a decision of the Landlord and Tenant Board, which found that the landlord's restriction of her access to the building's parking garage did not constitute a substantial interference with her reasonable enjoyment of the rental unit.

The Divisional Court dismissed the appeal, holding that the issue of substantial interference is a question of mixed fact and law, over which the court has no jurisdiction.

The court further noted that even if it were a question of law, the Board's conclusion was correct.

The defendant dentist sold his practice to the plaintiff and signed an agreement containing non-competition and non-solicitation clauses.

The plaintiff obtained an interlocutory injunction enforcing the restrictive covenants and restraining the defendant from advertising in the Iranian media.

The defendant sought leave to appeal to the Divisional Court.

The court denied leave to appeal the general injunction, finding no reason to doubt its correctness.

However, the court granted leave to appeal the order restraining advertising in the Iranian media, finding conflicting case law on whether general advertising constitutes solicitation and noting the issue's general importance to diverse communities.

The appellant appealed a decision of the Licence Appeal Tribunal upholding the revocation of his real estate license.

The appellant was an undischarged bankrupt who had previously pleaded guilty to misappropriating trust funds in connection with his real estate business.

The Divisional Court applied the reasonableness standard of review to the Tribunal's findings of fact and exercise of discretion.

The Court found no palpable and overriding error, concluding that the penalty of revocation was reasonable and necessary to protect the public.

The appeal was dismissed with costs.

The tenants appealed two decisions of the Ontario Rental Housing Tribunal ordering them to pay arrears of rent.

Under section 86 of the Tenant Protection Act, 1997, a landlord may only apply for arrears if the tenant is in possession of the rental unit at the time of the application.

The Divisional Court found that the Tribunal erred in law by failing to make express findings regarding the tenants' occupancy of the units when the applications were brought, despite evidence that they had vacated earlier.

The appeals were allowed, the Tribunal's decisions were set aside, and the matters were remitted for rehearing.

The applicant sought judicial review of an Adjudicator's decision upholding the Ministry of Natural Resources' disclosure of certain records to a requester.

The applicant argued the records were exempt from disclosure under s. 17(1) of the Freedom of Information and Protection of Privacy Act as they contained confidential commercial information.

The Divisional Court dismissed the application, finding the Adjudicator's conclusion that the information was negotiated rather than 'supplied' in confidence was reasonable.

The College of Physicians and Surgeons of Ontario brought a motion to introduce fresh evidence on a physician's appeal from a 2006 penalty decision.

The proposed fresh evidence was a 2007 decision finding the physician guilty of professional misconduct for breaching an undertaking.

The Divisional Court dismissed the motion, holding that a subsequent conviction is not relevant to assessing the reasonableness of a prior penalty decision.

The Court noted that allowing such evidence would defeat the finality of the trial process and that the College could have adduced the underlying facts of the breach at the original penalty hearing.

The appellants appealed a decision dismissing their claim to wind up two family-owned companies under s. 207 of the OBCA.

The appellants argued that irreconcilable differences and a mutual loss of confidence required the court to intervene.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusion that the appellant had no reasonable expectation that the business would be wound up or that he would continue to exercise de facto control.

The plaintiff appealed a Master's decision dismissing a motion to set aside a Registrar's order dismissing the action for delay.

The Divisional Court admitted new evidence showing the Master was inadvertently misled regarding the plaintiff's answers to undertakings and the timing of evidence on liability.

Finding that the Master made palpable and overriding errors of fact and that the defendant would suffer no prejudice, the Court allowed the appeal and set aside the dismissal order.

The employer brought an application for judicial review of an Ontario Labour Relations Board decision.

The Board had upheld a union grievance, finding that fire restoration work at a Petro-Canada site was 'construction work' under the Labour Relations Act and governed by the provincial agreement, rather than the General Presidents' Maintenance Agreement.

The employer argued the Board erred in its application of the doctrine of estoppel and lacked jurisdiction to issue supplemental reasons.

The Divisional Court dismissed the application, holding that the Board had jurisdiction to issue supplemental reasons and that its decision on the nature of the work and the application of estoppel was reasonable.

The applicant nurse sought judicial review of an order by the College of Nurses of Ontario's Board of Inquiry requiring her to submit to an extensive medical examination to assess her capacity to practice.

The Board ordered the examination after receiving allegations of narcotic administration discrepancies but provided no reasons for its decision.

The Divisional Court quashed the order, holding that the highly intrusive nature of the examination and the severe consequences of non-compliance triggered a high duty of procedural fairness under the Baker factors, which included a duty to provide reasons demonstrating reasonable and probable grounds for the order.

The appellant appealed an order dismissing his motion to set aside a default judgment in a construction lien action.

The action against the appellant was based on a personal guarantee of a corporate defendant's obligations.

The Divisional Court upheld the master's decision, finding that service by registered mail complied with the Construction Lien Act.

The court also agreed that the appellant failed to meet the three-pronged test to set aside a default judgment, specifically failing to provide a plausible explanation for the default and delaying eight months before bringing the motion.

The appeal was dismissed.

The appellant tripped and fell on a ramp while exiting the respondent's store, sustaining injuries including a torn rotator cuff.

At trial, the judge awarded $13,598 in damages after finding the appellant 50% contributorily negligent and concluding her shoulder injury was not caused by the fall.

On appeal, the Divisional Court found the trial judge made palpable and overriding errors by ignoring medical and lay evidence regarding causation and misapplying the principles of causation and apportionment.

The Court reduced the appellant's contributory negligence to 15% and reassessed damages, awarding a total of $104,044.41.

The applicant sought judicial review of a decision by a FSCO Director's Delegate, who had revoked an Arbitrator's award of statutory accident benefits and ordered a new hearing on the basis of inadequate reasons.

The Divisional Court determined that the standard of review for the adequacy of reasons is correctness.

The Court found that the Arbitrator's reasons were sufficiently thorough to explain her rejection of the insurer's medical expert and her acceptance of the applicant's evidence.

The application for judicial review was allowed, the Director's Delegate's decision was set aside, and the Arbitrator's decision was restored.

The defendant appealed a Small Claims Court judgment ordering it to pay the balance of a contract for boiler installation and related work.

The defendant alleged the plaintiff was part of an organized crime conspiracy to sabotage the project and that the trial judge improperly interfered with the presentation of its case.

The Divisional Court found no palpable and overriding error in the trial judge's factual findings and dismissed the conspiracy allegations as frivolous.

Although the trial judge's excessive interference in witness examinations amounted to an error in law, the court declined to order a new trial, concluding that no substantial wrong or miscarriage of justice occurred given the complete lack of merit to the defence.

The applicant sought judicial review of an OMERS Appeal Sub-Committee decision that found the respondent was the common-law spouse of the deceased and entitled to his pension death benefits.

The applicant argued the tribunal breached procedural fairness and that its decision was unreasonable.

The Divisional Court held that while the tribunal's pre-hearing procedures were fair, its written reasons were too brief and conclusory to allow for meaningful review.

The court could not determine if the tribunal properly applied the legal test for common-law status or correctly placed the burden of proof.

The application for judicial review was granted and the matter remitted for a new hearing.

The defendants appealed an interlocutory injunction that prohibited them from publishing any material identifying the plaintiffs on the internet and ordered them to delete all references to the plaintiffs.

The Divisional Court allowed the appeal, finding that the injunction was overly broad and an unwarranted restraint on freedom of expression.

The court also held that two of the plaintiffs were not entitled to injunctive relief because they failed to file affidavit evidence of irreparable harm, failed to provide an undertaking as to damages, and refused to attend examinations.

The injunction was set aside, replaced only by a narrow consent order regarding one specific article concerning one plaintiff.

The $35,000 costs award against the defendants was also set aside.

The appellant appealed an interlocutory order of the Licence Appeal Tribunal that dismissed his motion for a stay of a hearing of a Notice of Proposal.

The Divisional Court dismissed the appeal, holding that the statutory right of appeal under the Licence Appeal Tribunal Act applies only to final decisions, not interlocutory orders.

Furthermore, the court found the appeal to be premature, as the tribunal should be permitted to complete its work before appellate procedures are launched.