ODC 2008

The plaintiffs sought leave to appeal a decision setting aside a Master's order that refused to bifurcate a jury trial.

The Master had relied on appellate authority stating there is no jurisdiction to bifurcate a jury trial, but the motion judge found the Master erred and ordered severance.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision given existing binding appellate authority prohibiting the bifurcation of jury trials, and questioning whether the correct test for severance was applied.

The applicant, Toronto Police Services Board, brought a motion for a stay of proceedings before the Human Rights Tribunal pending its application for judicial review.

The applicant argued it was denied procedural fairness when the Ontario Human Rights Commission referred the complaint to the Tribunal without providing an amended complaint or addressing the complainant's delay.

The Divisional Court found the applicant satisfied the three-part test for a stay, noting serious issues regarding procedural fairness and jurisdiction, and that proceeding before the Tribunal would render the judicial review moot.

The motion for a stay was granted and an expedited hearing for the judicial review was directed.

The plaintiffs sought leave to appeal a motion judge's decision that directed a trial on the issue of whether a franchise disclosure document was merely incomplete under s. 6(1) of the Arthur Wishart Act or amounted to no disclosure under s. 6(2).

The Divisional Court dismissed the motion, finding that the sufficiency of a disclosure document is a highly fact-specific inquiry.

The court concluded that the proposed appeal did not raise a question of general importance warranting the attention of the Divisional Court.

The appellant appealed a Small Claims Court decision dismissing his claim for an unpaid account of $4,886 for services rendered to a former client.

The appellant sued the respondent, a lawyer who took over the client's file, alleging breach of contract for failing to protect the account.

The trial judge found no cause of action against the respondent personally and that the account was not reasonable.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact.

The applicant brought a motion to stay the discipline proceedings currently before the Hearing Panel of the Law Society of Upper Canada pending the disposition of her application for judicial review.

The hearing was virtually complete, with only final submissions remaining.

The court dismissed the motion, finding that the application was premature and that the applicant failed to establish irreparable harm or that the balance of convenience favoured a stay, as she had a full right of appeal from the Panel's final decision.

The appellant lawyer appealed a decision of the Law Society Appeal Panel upholding a Hearing Panel's finding of professional misconduct and order for disbarment.

The appellant argued that the proceedings should have been stayed for delay, and that the Hearing Panel breached natural justice by refusing an adjournment and proceeding to the penalty phase without adequate notice.

The Divisional Court held that the decision not to stay for delay was reasonable.

However, the court found that the Hearing Panel breached natural justice by refusing a brief adjournment when the appellant's counsel had a scheduling conflict, forcing the appellant to proceed unrepresented.

The court also found a clear breach of natural justice in proceeding to the penalty phase with less than 24 hours' notice.

The findings of misconduct and penalty were set aside, and a new hearing was ordered.

The moving party sought leave to appeal an Ontario Municipal Board decision that found it lacked jurisdiction to hear an appeal regarding a refused tree removal permit.

The right of appeal under s. 136(1) of the Municipal Act had been repealed before the permit was refused.

The court upheld the Board's finding that the moving party had no vested right of appeal upon merely filing the application, as the right only arises upon an actual refusal.

The motion for leave to appeal was dismissed.

The appellant, a former member of the Investment Dealers Association (IDA), challenged the IDA's jurisdiction to discipline him after he ceased to be a member.

The IDA's by-laws permitted discipline of former members for up to five years, and the Ontario Securities Commission upheld this jurisdiction.

On appeal, the Divisional Court applied a reasonableness standard of review and found that the Securities Act only authorizes the regulation of current members.

The court concluded that the IDA's by-law contravened the Act and that the IDA lacked jurisdiction to discipline former members.

The appeal was allowed.

The property owners sought leave to appeal an amended decision of the Assessment Review Board regarding omitted property assessments for the 2004, 2005, and 2006 taxation years following home renovations.

The owners argued the Board erred in law by allowing the omitted assessments, claiming the issues were barred by issue estoppel and res judicata.

The Divisional Court denied leave to appeal, finding that the Board's conclusion that the omitted assessments were properly returned for the additional square footage was a determination of fact, not a question of law as required by section 43.1(1) of the Assessment Act.

The defendants appealed a decision dismissing their motion to strike the plaintiff's action.

The plaintiff sued the Children's Aid Society alleging 'grooming', 'identity theft', and 'brainwashing' related to earlier child protection proceedings.

The Divisional Court allowed the appeal and dismissed the action, finding it was an abuse of process and a collateral attack on previous judicial findings that had repeatedly rejected these allegations.

The court also found the motion judge erred in failing to apply the Anns/Cooper test for a novel tort.

The landlord brought a motion to quash the tenants' appeal of an eviction order on the basis that it was manifestly devoid of merit.

The Landlord and Tenant Board had ordered eviction after finding the tenants committed an illegal act involving obstructing and assaulting a peace officer, and declined to grant relief from eviction under s. 83 of the Act due to the tenants' lack of candour.

The Divisional Court found the appeal raised no questions of law and was merely an attempt to overturn findings of fact and credibility.

The motion to quash was granted and the certificate of stay was vacated.

The appellants, who had previously been declared vexatious litigants, appealed from a Superior Court judgment dismissing their motion for leave to institute further proceedings against the respondents.

The Divisional Court quashed the appeal, holding that section 140(4)(e) of the Courts of Justice Act expressly precludes any appeal from a refusal to grant leave under section 140(3).

Costs were awarded to the respondents.

The defendants' motion for leave to appeal a decision substituting the representative plaintiff in a class action was dismissed.

The plaintiff sought costs of $22,858.21, while the defendants argued costs should be in the cause or limited to $2,500.

The court found the plaintiff's costs excessive for a narrow procedural motion that arose partly from a carriage dispute among class counsel.

Applying the principle of fair and reasonable expectations, the court fixed costs at $2,500 payable by the defendants.

The appellant employer appealed a trial judgment awarding the respondent employee damages for wrongful dismissal.

The trial judge had found that while the employee's behaviour, including racial slurs and breach of email policy, was inappropriate, it did not amount to just cause for summary dismissal without a clear warning.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's application of the McKinley test for wrongful dismissal.

The appellants, an investment management firm and minority shareholder, appealed the dismissal of their oppression application against the respondent corporation and its directors.

The application judge had found that the challenged related-party transactions were within the reasonable expectations of shareholders and protected by the business judgment rule.

The Divisional Court dismissed the appeal on the merits, finding no palpable and overriding error in the application judge's factual findings or application of the law.

The court upheld the award of substantial indemnity costs due to the appellants' unfounded allegations of misconduct and misuse of the court process, but allowed the costs appeal in part to deduct pre-application costs.

The Law Society of Upper Canada appealed a decision of its Appeal Panel restoring the membership of a former judge who had resigned following findings of serious sexual misconduct.

The Divisional Court dismissed the appeal, upholding the Appeal Panel's findings that the Hearing Panel erred in applying the enhanced 'Bernstein' standard of proof and in concluding it lacked jurisdiction to impose conditions on a restored licence.

The Court confirmed that the standard of proof for restoration is a simple balance of probabilities, the burden of proof lies on the applicant, and the Law Society has broad jurisdiction to impose conditions on a restored licence to protect the public interest.

The applicants sought judicial review of the provincial Minister of Natural Resources' decisions imposing quotas on yellow perch and walleye for their 2007 and 2008 commercial fishing licences.

They argued the statutory framework was an unlawful delegation of federal authority and that the Minister unreasonably fettered his discretion by adopting the Lake Erie Committee's recommendations.

The Divisional Court dismissed the application, finding the delegation lawful under established precedent and concluding the Minister's reliance on the international committee's expertise was reasonable and did not constitute an abdication of responsibility.

The appellants co-signed a bank loan for a third party who subsequently defaulted and declared bankruptcy.

The bank obtained judgment against the appellants at trial.

On appeal, the appellants argued the trial judge demonstrated a reasonable apprehension of bias and failed to properly assess conflicting evidence regarding their understanding of the loan documents.

The Divisional Court dismissed the appeal, finding no apprehension of bias and no palpable and overriding error in the trial judge's factual findings.

However, the court granted judgment on the appellants' crossclaim against the primary borrower, which the trial judge had overlooked.

The defendant in a motor vehicle accident action served a jury notice.

At the commencement of trial, the plaintiffs moved to strike the jury notice, arguing the main plaintiff, a Muslim-Canadian woman of Afghani descent, would not receive a fair trial due to post-9/11 racism and the political climate.

The trial judge struck the jury notice, taking judicial notice of a reasonable apprehension of bias.

The Divisional Court allowed the defendant's appeal, holding that the trial judge erred in taking judicial notice of such bias without evidence, as the facts were not so notorious as to be beyond reasonable debate.

The matter was remitted to a different trial judge.

The applicant sought judicial review of a decision by the respondent's service manager to revoke her rent-geared-to-income housing subsidy.

The applicant had been granted the subsidy by a property manager without following proper procedures, a fact unknown to the applicant.

The Divisional Court found that the respondent failed to afford the applicant procedural fairness by not giving her an opportunity to comment under section 80 of the Social Housing Reform Act, 2000, and by having the same person who participated in the original decision conduct the review, contrary to section 58(2) of Ontario Regulation 298/01.

The decision was set aside and remitted for reconsideration by a different decision-maker.