ODC 2008

The applicant insurer sought leave to appeal an order that reopened a dismissed class action certification motion to allow the plaintiffs to file fresh expert evidence.

The motion judge had previously dismissed the certification motion because the plaintiffs' expert evidence was inadmissible.

The motion judge then allowed the motion to be reopened, finding that the strict test for fresh evidence from Sagaz did not apply to procedural motions under the Class Proceedings Act.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision and conflicting decisions regarding the application of the principle of finality to procedural orders.

The defendant appealed a decision of a motions judge that set aside a case management master's order requiring the non-resident plaintiffs to post security for costs.

The Divisional Court resolved conflicting jurisprudence regarding the standard of review for appeals from a master, holding that the standard is the same as for appeals from a judge: correctness for errors of law, and palpable and overriding error for findings of fact.

The court found that the motions judge erred by treating the appeal as a hearing de novo and substituting his own view of the evidence regarding the plaintiffs' impecuniosity.

The master's finding that impecuniosity had not been established was entitled to deference, and her order for security for costs was restored.

The applicant sought judicial review of a decision by the Ontario Human Rights Commission to not deal with her complaint against the University of Windsor.

The applicant alleged that the university's policy of keeping her failed first-year marks on her transcript was discriminatory.

The Commission dismissed the complaint because it was filed beyond the six-month limitation period and the delay was not incurred in good faith.

The Divisional Court dismissed the application, finding the Commission's decision reasonable and holding that the ongoing presence of the marks on the transcript constituted continuing effects of a past act, not a continuing contravention of the Code.

Following a decision in which the defendant was successful, the court determined the issue of costs.

Applying Rule 57.01 of the Rules of Civil Procedure and the principle that costs must be reasonable and fair, the court awarded the defendant costs on a partial indemnity scale fixed at $3,661.90, payable by the plaintiff within 60 days.

The court issued an endorsement regarding costs following a motion.

Applying the principle that costs follow the event and considering the factors in Rules 49 and 57.01 of the Rules of Civil Procedure, the court awarded the respondent costs of $5,000 on a partial indemnity scale.

The applicants sought leave to appeal to the Divisional Court from an order dismissing their motion to strike a summons to witness.

The respondent had issued the summons to examine a representative of the applicants in connection with a pending motion under Rule 21.01(1)(a).

The court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision that the evidence was potentially relevant, and concluding that the proposed appeal did not involve matters of general importance.

The applicants sought judicial review to quash a decision of the Ontario Human Rights Commission referring a discrimination complaint to the Human Rights Tribunal of Ontario.

The applicants argued the Tribunal lacked jurisdiction because the postulancy process is not a 'service' under the Human Rights Code and the subject matter of the complaint had ceased to exist.

The Divisional Court dismissed the application, holding that the preliminary jurisdictional issue of whether the relationship constitutes a 'service' is best decided in the first instance by the Tribunal, and that the amended complaint was properly before the Tribunal.

The plaintiff entered into a contract for job-search services with BH International and paid a fee.

When BH closed its Canadian operations, its former employee, the defendant Smith, started a new job-search agency, RD Group International.

The trial judge found RD and Smith liable to refund the plaintiff's fee, concluding RD was a successor to BH based on a memorandum sent to clients.

On appeal, the Divisional Court set aside the judgment, finding a palpable and overriding error as the memorandum provided no evidence of successor liability or assumption of contracts, and there were no grounds to pierce the corporate veil to hold Smith personally liable.

The appellants appealed the dismissal of their motion for certification of a class action against Imperial Tobacco Canada Limited.

The proposed class action alleged that the respondent's cigarettes were defectively designed because they posed an unreasonable risk of igniting residential fires.

The Divisional Court upheld the motions judge's findings that the proposed class definitions were unacceptably merits-based, that a class action was not the preferable procedure due to overwhelming individual causation issues, and that the proposed litigation plan was unworkable.

The respondent's cross-appeal regarding costs was also dismissed.

The applicant, Kenora Prospectors & Miners, Limited, sought leave to appeal an order made at a trial management conference that denied it leave to bring a motion to be removed as a party to a family law proceeding.

The applicant argued it was denied the right to be heard on the merits of its request for leave.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order because the applicant was seemingly denied the opportunity to present its case, and concluding that the right to be heard and the proper conduct of trial management conferences are matters of systemic and public importance.

The Crown appealed a Small Claims Court decision finding it liable in nuisance for damage to the respondent's dock caused by the release of water from the Trent-Severn Waterway during a heavy rainstorm.

The respondent cross-appealed the dismissal of his claims in negligence, Rylands v. Fletcher, and riparian rights, as well as the trial judge's costs award.

The Divisional Court dismissed the Crown's appeal, upholding the finding that the release of water caused the damage and constituted a nuisance.

The cross-appeal on liability was dismissed, but the cross-appeal on costs was allowed, increasing the respondent's trial costs to $645.50.

The appellant appealed the Alcohol and Gaming Commission's decision to refuse the renewal of its registration.

The Divisional Court dismissed the appeal, finding no error of law in the Commission's conclusion that the appellant's representative attempted to deceive the Commission.

The Court also held that the financial information sought by the Commission was relevant, and the refusal to provide it contravened the Gaming Control Act, requiring the refusal of the renewal.

Costs of $10,460 were awarded to the respondent.

The self-represented plaintiff appealed a Small Claims Court decision dismissing his claims against the City of Toronto and the Toronto Police Services Board.

The Divisional Court upheld the dismissal of claims based on direct liability and statute-barred parking tags.

However, the court allowed the appeal regarding abuse of process, finding that the plaintiff was not seeking to re-litigate or set aside a prior judicial finding.

The appeal was allowed in part, and costs were awarded to the plaintiff.

On a judicial review application, certain respondents moved to strike an exhibit to an affidavit submitted by the Ministry of the Environment.

The exhibit, which detailed a delegation of authority under the Environmental Bill of Rights, was tendered to show that the Minister's obligations had not been delegated.

The Divisional Court granted the motion and struck the exhibit, holding that it was not part of the record before the tribunal and that the rare circumstances permitting the supplementation of the record on judicial review, such as showing jurisdictional error, did not apply.

The appellant appealed a decision of the Social Benefits Tribunal that upheld the cancellation of his disability benefits.

The appellant argued that the Tribunal erred in law by finding he and another individual met the definition of 'spouse' under O. Reg. 222/98, asserting that a mutual written declaration was required.

The Divisional Court dismissed the appeal, holding that the Tribunal made no error of law and was entitled to consider surrounding circumstances to determine if a declaration had been made.

The appellant defendant appealed a Master's order dismissing his motion to stay the action on the basis of forum non conveniens, arguing that Zambia was the appropriate forum.

The Divisional Court first determined that the standard of review for a Master's final discretionary order is one of deference, not correctness.

Applying this standard, the court upheld the Master's findings that the appellant had attorned to Ontario's jurisdiction by filing a statement of defence and counterclaim, that Ontario had a real and substantial connection to the conspiracy claims, and that the appellant failed to clearly establish that Zambia was the more appropriate forum.

The appeal was dismissed.

The appellants appealed an order regarding a solicitor conflict of interest.

Leave to appeal was granted on a narrow issue regarding remedy.

The appellants conceded that if the appeal was limited to this single issue—specifically, whether precautionary measures could be put in place after the fact, without arguing that the presumption of receipt of privileged information did not apply—the appeal could not succeed.

The Divisional Court held that the appeal was limited to the narrow ground on which leave was granted and dismissed the appeal, awarding costs to the respondents.

The moving party brought a motion to a panel of the Divisional Court to set aside a previous decision refusing leave to intervene as a friend of the Court in an application for judicial review.

The underlying application involved certificates of approval granted under the Environmental Bill of Rights.

The Court treated the motion as a hearing de novo due to the moving party refining his position.

Finding that the case engaged matters of public concern and that the moving party had special knowledge and expertise regarding the statement of environmental values, the Court granted leave to intervene.

The moving party sought an order extending the time to file a Notice of Appeal from a Small Claims Court decision.

The moving party had previously brought an unsuccessful motion for a new trial in the Small Claims Court.

The Divisional Court applied the test from Frey v. MacDonald and found the moving party had not satisfied the requirements.

The motion for an extension of time was dismissed with costs fixed at $3,500.

The appellants appealed a Small Claims Court judgment awarding the respondent damages for overtime, mileage, and termination pay.

The Divisional Court allowed the appeal in part, setting aside the personal judgment against Andrejs Ritins as no claim was pleaded against him.

The court also found the trial judge erred in imposing joint and several liability on the two corporate defendants, as one was not incorporated until after some obligations accrued.

The court upheld the overtime and mileage claims based on contract, and awarded $2,300 in termination pay against Ritins International Inc., reducing the total judgment against it to $5,598.18.