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 and its conclusion that the casino failed to establish a bona fide occupational requirement, as it did not prove it canvassed alternatives to its discriminatory practice.

However, the court found the tribunal breached natural justice by failing to allow the casino to present evidence and submissions on the appropriate remedy.

The appeal was allowed in part, and the matter was remitted to a different tribunal member for a rehearing solely on the issue of remedy.

The appellant appealed a decision dismissing its application to quash a new construction notice and recalculated property tax bills issued by the respondent municipality.

The municipality had failed to issue the notice within the 60-day period prescribed by s. 331(9) of the Municipal Act, 2001, delaying the billing by several years due to software limitations.

The Divisional Court upheld the lower court's finding that the word 'shall' in s. 331(9) is directory, not mandatory.

A mandatory interpretation would frustrate the statutory purpose of taxing comparable properties equally and grant the appellant a perpetual tax holiday, whereas a directory interpretation fulfilled the legislative intent without causing significant prejudice.

The appellants appealed a decision certifying two actions as class proceedings on behalf of participating life insurance policyholders.

The appellants argued the motions judge erred in finding a class proceeding was the preferable procedure under s. 5(1)(d) of the Class Proceedings Act, asserting that the Insurance Companies Act provided adequate alternative remedies for stakeholders.

The Divisional Court dismissed the appeal, holding that the motions judge made no error in principle and reasonably concluded that a class proceeding offered juridical advantages, including case management, access to justice through contingency fees, and judicial supervision of remedies.

The appellant appealed a Small Claims Court decision finding him liable for $10,000 for the negligent installation of ceramic tiles in the respondent's home.

The appellant argued the trial judge made erroneous findings of fact regarding the visibility of floor joists and the cause of the cracking tiles.

The Divisional Court dismissed the appeal, holding that the trial judge's finding that the appellant breached his duty to discuss the adequacy of the floor joists with the homeowner was supported by the evidence and not clearly wrong.

The plaintiff was successful on an appeal from the Small Claims Court and sought costs of $5,542.99 on a partial indemnity basis.

The defendants argued the claim was excessive.

The court agreed with the defendants, noting the original damages claimed were only $4,000 and the appeal did not require extensive preparation.

Applying the factors in Rule 57.01(1) of the Rules of Civil Procedure, the court awarded the plaintiff costs fixed at $3,200 inclusive of disbursements and GST.

The applicant sought costs following an application for judicial review and a stay motion that were granted on consent.

The court rejected the Commission's proposed costs of $3,500 as inadequate.

Costs for the application and stay motion were fixed at $10,000, with an additional $1,500 awarded for the day's appearance.

The appellant corporation, KPM, appealed an order of the case management judge denying it leave to bring a motion to remove itself as a party to a long-standing family dispute.

KPM argued the order was made summarily without an opportunity to be heard.

The Divisional Court dismissed the appeal, finding that the case management judge was entirely familiar with the reasons for adding KPM as a party to facilitate property valuation, and was entitled to deal with the request expediently.

The reasons for KPM's inclusion as a party remained extant.

The appellant brought a motion to adjourn the appeal in order to obtain a transcript of a trial management conference.

The Divisional Court denied the motion, noting that a court reporter is only present at such conferences when a litigant is unrepresented, and a transcript cannot be ordered without the conference judge's permission.

The court held that granting an adjournment based on the mere hope of obtaining permission made no sense.

Furthermore, the relevant rule only contemplates transcripts of oral evidence, which was not given at the conference.

The applicant union sought judicial review of a decision by the Local Health Integration Network (LHIN) to approve a Service Accountability Agreement with a hospital, which included a plan to consolidate mental health services to eliminate a budget deficit.

The applicant argued the LHIN failed to engage in required public consultation.

The Divisional Court dismissed the application, finding that the LHIN's funding decision did not constitute an 'integration decision' under the Local Health System Integration Act that would trigger statutory consultation requirements.

The court also found no breach of procedural fairness or legitimate expectations.

The landlord appealed a decision awarding the tenant $7,648.80 for the replacement value of goods removed or trashed by the landlord.

The landlord argued that damages should be nominal or reduced by fifty percent for depreciation.

The Divisional Court dismissed the appeal, finding no errors of law and holding that it was open to the trier of fact to award replacement values.

Costs of $5,000 were awarded to the respondent tenant.

The defendant sought leave to appeal a decision certifying the plaintiffs as representative plaintiffs in a class action.

The motion for leave to appeal was denied with costs to the plaintiffs.

The plaintiffs sought costs of $35,280.51, while the defendant argued for $5,000.

The court found the plaintiffs' claim excessive but the defendant's proposal insufficient, considering the $11 to $16 million at issue, the historical context of the pension surplus, and the complexity of the issues.

Costs were fixed at $15,000 inclusive.

The College of Physicians and Surgeons of Ontario moved for leave to appeal an order dismissing its motions to strike out applications brought by four physicians.

The physicians had applied to the Superior Court challenging the constitutionality of s. 76(1) of the Health Professions Procedural Code.

The College argued the Superior Court lacked jurisdiction and the matters should be heard by the administrative tribunal.

The Divisional Court dismissed the motion for leave to appeal, finding the motions judge correctly applied the test for striking pleadings and properly concluded it was not plain and obvious the applications would fail, as the Superior Court retains residual jurisdiction over Charter challenges.

The appellants appealed a Small Claims Court judgment awarding damages to both respondents for lost baggage on an international flight.

Only one respondent had checked the lost bag, which contained items belonging to both.

The Divisional Court allowed the appeal, holding that under Article 22(2) of the Montreal Convention, only the passenger who actually checked the baggage is entitled to claim compensation for its loss.

The respondents' cross-appeal, arguing that liability limits should not apply because they were not given notice, was dismissed.

The tenant appealed eviction orders made by the Residential Tenancy Tribunal.

The landlords brought a motion to quash the appeals as an abuse of process and lacking merit.

The Divisional Court found that the tenant received a fair hearing at the Tribunal and raised no valid questions of law.

As appeals from the Tribunal are restricted to questions of law under s. 210(1) of the Residential Tenancies Act, the appeals were dismissed and the eviction order was given full force and effect.

The complainant, who had bipolar disorder, was hired as a software program tester.

Shortly after starting, he disclosed his condition to his supervisor and began exhibiting pre-manic symptoms.

The employer terminated him ten days into his employment, claiming he misrepresented his ability to perform the job.

The Human Rights Tribunal found the employer discriminated against the complainant and failed its procedural and substantive duties to accommodate his disability, awarding damages and public interest remedies.

The Divisional Court upheld the Tribunal's findings on discrimination, accommodation, and damages, but modified some of the public interest remedies.

The City of Toronto appealed a decision of the Assessment Review Board which quashed its complaints regarding the property assessments of two properties.

The Board had found the City failed to comply with the notice provisions in s. 40(3) of the Assessment Act because it mailed the notices to the previous owner's address on the assessment roll despite knowing the properties had been sold.

The Divisional Court allowed the appeal, holding that the City acted reasonably and in good faith by using the address on the roll, which had not been revoked.

The Court found the Board erred in imposing a higher standard of inquiry on the municipality, set aside the decision, and remitted the complaints for a hearing on the merits.

The applicant drug manufacturer sought judicial review of a decision by the Executive Officer of the Ontario Public Drug Programs refusing to list its generic drug on the Formulary at 85% of the brand name price.

The Executive Officer insisted on the standard 50% rate, citing an existing agreement with the brand name manufacturer and rejecting the applicant's rationale based on ongoing patent litigation costs.

The Divisional Court dismissed the application, finding the Executive Officer's exercise of discretion and interpretation of the confidentiality provisions in the Regulation to be reasonable.

The defendants sought leave to appeal a Master's decision ordering them to answer certain discovery questions.

The plaintiff, a former CEO of Symcor, claimed a 10% equity interest based on his employment agreement.

The defendants argued the agreement was unenforceable.

During discovery, the defendants refused to answer questions regarding the drafting of a subsequent shareholders' agreement, claiming solicitor-client privilege.

The Master ordered the questions answered, finding no privilege or that privilege was waived.

The Divisional Court granted leave to appeal for Symcor regarding certain questions, finding good reason to doubt the Master's decision on privilege, but denied leave for the Banks and other questions.

The appellant physician was found guilty of professional misconduct for improperly conducting a breast examination.

The Discipline Committee imposed a permanent condition on his certificate of registration restricting his practice to male patients.

The physician appealed the penalty.

The Divisional Court allowed the appeal, holding that section 51(2)3 of the Health Professions Procedural Code permits conditions for a 'specified or indefinite' period, but 'indefinite' does not mean 'permanent'.

The Committee therefore lacked jurisdiction to impose a permanent restriction.

The applicant sought judicial review of an Ontario Labour Relations Board decision that upheld an employment standards officer's refusal to issue an order for unpaid wages.

The applicant claimed he was owed wages paid 'in kind' by a company owned by his mother.

The Divisional Court dismissed the application, finding that the appropriate standard of review was reasonableness.

The court held that the OLRB's findings—that the applicant was not an employee during the relevant period and had not established a wage rate—were reasonable and supported by the evidence.