ODC 2008

The appellant police officer appealed a decision of the Ontario Civilian Commission on Police Services, which upheld a Hearing Officer's finding that he was guilty of unlawful or unnecessary exercise of authority.

The charges arose after the appellant arrested an individual for public intoxication and failing to identify himself, resulting in an altercation.

The Divisional Court dismissed the appeal, finding that the Commission reasonably concluded the Hearing Officer's decision was supported by the evidence, despite deficiencies in the Hearing Officer's reasons regarding credibility findings.

The City of Toronto sought leave to appeal a decision of the Ontario Municipal Board that allowed a developer's application for minor variances to permit a retirement residence.

The City argued the application should have proceeded as a rezoning and Official Plan amendment, as the proposal changed the permitted use and significantly exceeded lot coverage and density limits.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the Board's legal interpretation of the minor variance test under section 45(1) of the Planning Act and its application of the Official Plan and Secondary Plan.

The appellant, a Swiss manufacturing company, appealed a Master's order dismissing its motion to stay a breach of contract action on the basis of forum non conveniens.

The Master had found that Ontario had a real and substantial connection to the action and that Switzerland was not clearly a more appropriate forum.

The Divisional Court dismissed the appeal, finding no palpable and overriding error or error in principle in the Master's application of the jurisdiction and forum non conveniens tests.

The appeal of the $44,000 costs award was also dismissed.

The appellant appealed a Deputy Judge's decision granting default judgment to the plaintiff.

The Divisional Court found that the Deputy Judge misapplied the law by refusing to hear the defendant, who was present and ready to proceed despite lacking an interpreter, and by harshly denying a brief adjournment requested by counsel to allow witnesses to arrive.

The appeal was allowed, the default judgment was set aside, and the appellant was granted leave to file a Defence and Counterclaim.

The self-represented plaintiffs sought leave to appeal a discretionary, administrative decision made by a motion judge in Triage Court.

The Divisional Court denied leave to appeal, finding no good reason to doubt the correctness of the decision and no matters of public importance involved.

The court noted the decision did not affect the plaintiffs' substantive rights or infringe any constitutional rights.

The plaintiffs appealed an interlocutory order removing their solicitor of record for allegedly improper conduct.

The solicitor had contacted corporate counsel for a non-party (Cineplex) to clarify ownership issues regarding the premises where the plaintiff's slip and fall occurred.

The Divisional Court allowed the appeal and reinstated the solicitor, finding that the motions judge mischaracterized the legal test and misconstrued the facts.

The court held that the Rules of Professional Conduct prohibiting contact with represented parties did not apply, as the non-party was not represented by the defendant's counsel and no confidential information was discussed.

The applicant sought judicial review of an Ontario Municipal Board decision dismissing its appeal of two zoning by-laws.

Prior to the hearing, the City of Ottawa passed a new Comprehensive Zoning By-law that repealed and replaced the impugned by-laws, subjecting the lands to the same uses.

The applicant did not appeal the new by-law.

The Divisional Court found the application for judicial review was moot because the original by-laws had been superseded.

Applying the Borowski factors, the court declined to exercise its discretion to hear the moot application, noting there were no collateral consequences, no issues of broad public importance, and limited application to other lands.

The City of Toronto and Kingsway Residents Against Poor Planning brought motions for leave to appeal an Ontario Municipal Board (OMB) decision approving a zoning by-law amendment for a seven/eight-storey development.

The applicants argued the Board erred in law by applying the repealed Etobicoke Official Plan rather than the City's in-force Official Plan, relying on the 'Clergy Principle'.

The Divisional Court dismissed the motions, finding the Board committed no error of law and properly exercised its discretion in weighing the evidence and applying the Clergy Principle.

The moving party sought a stay of an order compelling the sale of two properties pending an appeal.

The underlying application was brought under the Business Corporations Act to wind up a numbered corporation and compel the sale of the properties.

The court applied the three-part test for a stay pending appeal.

While finding there was a serious issue to be tried, the court concluded the moving party would not suffer irreparable harm and the balance of convenience did not favour granting the stay.

The motion for a stay was dismissed with costs.

The appellant police officer appealed a decision of the Ontario Civilian Commission on Police Services (OCCPS) upholding a finding of misconduct for corrupt practice and the resulting penalty of demotion.

The officer had released an arrested individual without charge and subsequently accepted hockey tickets from him.

The Divisional Court dismissed the appeal, finding that the OCCPS reasonably concluded the officer's actions constituted corrupt practice, there was no reasonable apprehension of bias by the hearing officer, and the penalty was not disproportionate.

The applicant, a lawyer, sought judicial review of a decision by the Ontario Racing Commission prohibiting him from appearing as counsel before it until he provided an unqualified apology for his conduct during a hearing.

The Divisional Court quashed the Commission's decision, finding that the Commission's hearing raised a reasonable apprehension of bias because the panel had pre-judged the matter and prepared its reasons in advance.

Furthermore, the Court held that the Commission exceeded its jurisdiction by effectively conducting a contempt hearing, a power reserved for the Divisional Court under the Statutory Powers Procedure Act.

The matter was not remitted to the Commission, as the applicant's conduct had already been referred to the Law Society of Upper Canada.

The plaintiff brought a motion to quash the defendant's appeal of a motion judge's order.

The motion judge had denied the defendant leave to bring a motion seeking answers to undertakings and refusals, and permission to amend its statement of defence and counterclaim.

The plaintiff argued the order was interlocutory and therefore could not be appealed under s. 71(3) of the Construction Lien Act.

The Divisional Court dismissed the motion to quash, finding that the denial of leave to amend the statement of defence effectively barred the defendant from raising substantive defences, rendering the order final rather than interlocutory.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's order requiring the insurer to pay the claimant approximately $4,350 for attendant care and housekeeping services.

The insurer argued the arbitrator erred by relying on an excerpt from a medical report and by judging the claimant's credibility solely on her demeanour.

The Divisional Court dismissed the application, finding that the excerpt was properly in evidence as part of a larger report filed by the insurer, and that the arbitrator reasonably weighed credibility in the context of the evidence as a whole.

The standard of review applied was reasonableness.

The appellant supplier appealed the dismissal of its breach of trust claim against the individual directors and an employee of a defunct contractor under s. 8 of the Construction Lien Act.

The trial judge had dismissed the claim, relying on a previous decision to hold that the supplier must intend the materials to be used for a known and identified improvement.

The Divisional Court allowed the appeal, distinguishing the previous decision and holding that the plain language of the Act does not require such intent.

The Court found the directors and the employee who had effective control of accounting jointly and severally liable for the breach of trust.

Following an appeal, the successful respondents sought costs.

The appellants argued that no costs should be awarded, or costs should be reduced, because they were litigating in the public interest.

The Divisional Court rejected this argument, holding that costs should follow the event.

The court awarded the respondents costs on a partial indemnity basis, fixing fees at $25,000 for the appeal and $5,000 for the leave to appeal motion, plus $1,700 in disbursements and GST.

The Law Society of Upper Canada brought a motion to quash a summons to witnesses issued by the appellant, who sought to examine discipline counsel and investigators regarding their motivations in his disciplinary hearing.

The court granted the motion, finding the proposed questioning to be a fishing expedition, irrelevant under Rule 39 of the Rules of Civil Procedure, and an abuse of process.

The plaintiffs sought leave to appeal an interlocutory injunction granted in favour of the defendants in a dispute between two family-owned companies over commercial lease rent payments.

The plaintiffs argued the motions judge erred in finding irreparable harm and exceeded his jurisdiction by characterizing their conduct as illegal.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision and concluding the matter did not raise issues of public importance justifying a hearing by a full panel.

The applicants sought judicial review of an Ontario Racing Commission (ORC) decision suspending them for one year and imposing fines for 'tubing' horses prior to races.

The applicants argued they were denied natural justice because the ORC relied on general rules rather than a specific prohibition against tubing, and that the panel erred in excluding photographic evidence.

The Divisional Court applied the reasonableness standard, finding ample evidence that tubing was a known prohibited practice in the industry.

Although the panel erred in excluding the photographs, it did not cause a meaningful injustice.

The application was dismissed and the penalties upheld.

The applicants sought leave to appeal a decision adding two solicitors and their law firms as intervening parties in a complex land transaction dispute.

The disputing parties had each initiated separate actions against the same lawyers for negligence.

The court found no conflicting case law regarding Rule 13 of the Rules of Civil Procedure in the context of private litigation, noting that the benchmark of caution applies but the need to avoid multiplicity of proceedings justified the intervention.

The motion for leave to appeal was dismissed.

The appellant mother sought leave to appeal an order dismissing her motion for a stay of a trial judgment pending appeal.

The trial judge had found the children to be in need of protection due to parental alienation by the mother and ordered them placed in the father's care.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision that a stay was not warranted, and set an expedited date for the hearing of the main appeal.