ODC 2008

Following the dismissal of the Canadian Public Accountability Board's preliminary motion to quash an application for judicial review, the Certified General Accountants Association of Canada sought its costs.

The court considered the factors under Rule 57.01, noting the complexity and importance of the issues, but found the requested amount of over $70,000 to be excessive for a one-day motion.

Costs were fixed at $35,000 plus disbursements on a partial indemnity scale.

The appellant appealed the dismissal of his personal injury action following a jury trial.

The jury found the appellant sustained no injuries in a motor vehicle accident, despite the trial judge ruling that the appellant met the statutory threshold.

The appellant argued that defence counsel's closing address, which improperly focused on the appellant's immigrant status and speculated on how he would use a damages award, was inflammatory and prejudiced the jury.

The Divisional Court allowed the appeal and ordered a new trial, finding that the comments were irrelevant, offensive, and likely swayed the jury based on improper considerations, and that the trial judge's correcting instruction was inadequate.

The applicants sought judicial review of the Minister of Labour's decision to revoke an order authorizing a multi-workplace joint health and safety committee.

The respondent school board brought a preliminary motion to strike portions of the applicants' affidavits, arguing they contained irrelevant information, hearsay, and improper opinion evidence.

The motion judge dismissed the motion, finding that the full panel hearing the judicial review application would be in a better position to assess the admissibility and relevance of the affidavit evidence.

The applicants, two high school students, sought judicial review of a principal's decision to suspend them and transfer them to another school following a violent altercation.

The applicants argued the principal lacked jurisdiction to transfer them, breached procedural fairness, and violated their rights under sections 7 and 15 of the Charter.

The Divisional Court dismissed the application, finding that the principal had the statutory authority to deny access and transfer students for safety reasons.

The court also held that there was no breach of procedural fairness and that the applicants failed to establish any Charter violations.

Imperial Oil Limited applied for judicial review of an arbitration board's decision that its random drug testing policy using buccal swabs violated the collective agreement.

The Divisional Court dismissed the application, finding that the arbitration board's interpretation of the collective agreement in light of established arbitral jurisprudence (the 'Canadian model') was not patently unreasonable.

The Court held that the board did not alter the collective agreement, did not rely on unsupported findings of fact, and reasonably interpreted the agreement's requirement to treat employees with respect and dignity without needing to apply the Human Rights Code.

The corporate respondents sought costs of $32,950.29 on a partial indemnity basis following their success on an application for judicial review.

The applicants, represented by community legal clinics, argued no costs should be awarded as the application raised an issue of public interest regarding the related employer provisions of the Employment Standards Act.

The Divisional Court declined to award costs, finding the applicants were individuals of limited means who brought the application in good faith to enforce protective legislation, and the case raised an issue of importance for other vulnerable employees.

The Industry Coalition for Environmental Fairness Inc. (ICEF) and the Environmental Commissioner of Ontario brought motions for leave to intervene in a judicial review of an Environmental Review Tribunal decision.

The underlying judicial review concerned the test for leave to appeal under the Environmental Bill of Rights regarding certificates of approval issued to a cement company.

The court dismissed both motions, finding that ICEF lacked a direct interest and would not make a useful contribution without causing delay, and that the Environmental Commissioner's proposed intervention would not provide a different perspective from the existing parties and would likely prejudice them.

The applicants sought judicial review of an interlocutory decision by the Agricultural, Food and Rural Affairs Tribunal adding a former human resources administrator as a respondent party to an unfair labour practice complaint.

The applicants also alleged a reasonable apprehension of bias against the Tribunal.

The Divisional Court held that the Tribunal exceeded its jurisdiction by adding the administrator as a party, as the complaint contained no allegations that she personally breached the Agricultural Employees Protection Act.

The Court dismissed the bias allegations, finding that the applicants had waived their objections and failed to establish a reasonable apprehension of bias.

The landlord appealed a decision of the Ontario Rental Housing Tribunal that dismissed its application for an above-guideline rent increase related to lobby renovations.

The Adjudicator had dismissed the claim due to missing schedules in the contract and concerns about a non-arms-length relationship between the landlord's agent and the contractor.

The Divisional Court allowed the appeal, finding the Adjudicator erred in law by relying on an irrelevant corporate relationship and breached procedural fairness by failing to consider the landlord's requests to file the missing documents.

The matter was remitted to a different adjudicator for rehearing.

The applicants sought judicial review of a Toronto Licensing Tribunal decision revoking their tow truck operator licenses.

They argued the Tribunal breached procedural fairness by refusing an adjournment when their agent failed to appear, instead allowing two police witnesses to testify in chief.

The majority of the Divisional Court dismissed the application, finding that the agent's subsequent refusal to cross-examine the witnesses and the Tribunal's overall fair conduct cured any initial prejudice.

A dissenting judge would have ordered a new hearing, finding the initial refusal to adjourn and the admission of highly prejudicial, uninterrupted testimony fundamentally unfair.

The moving party sought leave to appeal two interlocutory orders: one temporarily staying the action pending the resolution of related tax proceedings, and another striking claims of conspiracy and misfeasance in public office with leave to amend.

The Divisional Court found no reason to doubt the correctness of the motion judge's decisions and no conflicting decisions warranting leave.

The motion for leave to appeal was dismissed.

The applicants sought judicial review of a decision by the Toronto Animal Services Manager to destroy their dog under the Animals for Research Act.

The Manager determined that the dog was a restricted pit bull under the Dog Owners Liability Act, had attacked another dog and a person, and was a menace.

The Divisional Court held that the standard of review was reasonableness and found the Manager's decision reasonable based on licensing records, veterinary certificates, and the dog's physical characteristics.

The application for judicial review was dismissed.

The appellant appealed a Small Claims Court judgment finding her liable under a conditional sales contract for a motor vehicle.

She argued the trial judge erred by admitting business records and hearsay evidence without compliance with the notice requirements of section 35 of the Evidence Act.

The Divisional Court dismissed the appeal, holding that section 27(1) of the Courts of Justice Act permits the admission of relevant hearsay in Small Claims Court proceedings, and that section 35 of the Evidence Act is an enabling provision that does not restrict other statutory avenues for admitting business records.

The evidence was found sufficient to establish liability.

The applicant, a vice principal, sought judicial review of a decision by the Investigations Committee of the Ontario College of Teachers not to refer his complaint against a principal to the Discipline Committee.

The Divisional Court dismissed the application, finding that the applicant lacked standing.

As a mere complainant under the Ontario College of Teachers Act, he had no special or private interest in the decision beyond that of any member of the public.

Costs were awarded to the respondents on a partial indemnity basis.

The applicant brought a motion to limit the involvement of the Ontario Human Rights Commission in the proceedings and to appoint an amicus curiae.

The Divisional Court dismissed the motion, finding no justification to limit the Commission's involvement or to appoint an amicus curiae, noting that the Commission was the only party in a position to assist the court.

The respondents requested an adjournment of an appeal of a costs order due to the death of one of the co-respondents.

The majority of the Divisional Court denied the adjournment, noting that the deceased's estate had no interest in the litigation, the request was for an indefinite period, and the case had been pending for a considerable time.

Molloy J. dissented, stating she would have granted the adjournment to ensure the rights of the deceased's estate were protected.

Following a successful appeal by the defendant, the court determined the appropriate scale and quantum of costs.

The appellant sought substantial indemnity costs based on an offer to settle the appeal.

The court held that Rule 49 does not apply to offers to settle appeals and awarded costs on a partial indemnity scale.

The court fixed the costs at $12,000 for fees plus disbursements and GST, finding the appellant's claimed hours slightly excessive for a case dismissed at the pleadings stage.

The plaintiff sought leave to appeal an order staying her wrongful dismissal action pending the resolution of her human rights complaint.

The plaintiff argued the motion judge erred in relying on certain rules and misapprehended the timeline of the human rights investigation.

The Divisional Court dismissed the motion, finding the plaintiff failed to meet the test for leave to appeal under Rule 62.02(4), as the motion judge's exercise of discretion was reasonable given the plaintiff's delay in issuing the statement of claim and the progress of the human rights complaint.

The moving party sought leave to appeal an order dismissing a motion to compel a non-resident party to attend in Ontario for questioning under Rule 20(14) of the Family Law Rules.

The moving party argued there were conflicting decisions on whether the rule limits the court's discretion to order a non-resident to come to Ontario.

The Divisional Court dismissed the motion, finding that the allegedly conflicting decision relied on the Rules of Civil Procedure rather than the Family Law Rules, and therefore did not constitute a conflicting decision.

The Crown sought costs for an initial pleadings motion, motions for leave to appeal, and the appeal, claiming success in having portions of the action struck and obtaining a stay.

The respondent argued for costs, asserting general success.

The Divisional Court found success on the appeal was divided and awarded no costs for the appeal or leave motions.

However, the court found the respondent achieved substantial success on the original motion and awarded the respondent costs of the motion fixed at $27,000, reduced by 25% to reflect partial success.