ODC 2009

The appellant appealed the dismissal of her Small Claims Court action for defamation against the respondent, who had appraised her performance as a teacher's aide.

The appellant alleged the respondent made defamatory statements to her husband and an acquaintance who had contacted the respondent under false pretenses to elicit information.

The Divisional Court upheld the trial judge's findings that the husband and acquaintance acted as the appellant's agents, meaning there was no publication to a third party in law.

The court also found no error in the trial judge's refusal to grant an adjournment to call an audio technician, nor in his refusal to infer publication to other school boards based on the appellant's lack of job offers.

The Municipal Property Assessment Corporation and the City of Toronto appealed an interim decision of the Assessment Review Board regarding the property tax assessments of several large office complexes.

The Board had accepted the property owners' argument that the properties should be valued as if vacant, treating all leases as encumbrances under the definition of 'current value' and 'fee simple, if unencumbered' in the Assessment Act.

The Divisional Court allowed the appeal, holding that the Board's interpretation was incorrect in law.

The Court found that a leasehold interest is an interest in land for assessment purposes, and the whole of the land must be assessed by valuing the totality of interests, including the value of leases in place, rather than just the owner's interest.

The appellant solicitor appealed an order requiring him to personally pay $10,000 in costs under Rule 57.07 of the Rules of Civil Procedure.

The motions judge had awarded costs against the solicitor largely due to allegations of unprofessional conduct and conducting the litigation in an unreasonable manner.

The Divisional Court allowed the appeal, finding that the motions judge failed to apply the 'extreme caution' principle and did not establish how the solicitor's conduct caused costs to be incurred unnecessarily.

The court emphasized that Rule 57.07 is compensatory, not punitive, and should not be used to sanction professional misconduct that does not result in wasted costs.

The applicant applied for judicial review of a decision by the Information and Privacy Commissioner ordering the disclosure of mediation and settlement materials.

The materials had been prepared for the mediation of ongoing litigation between the applicant and the respondent.

The Divisional Court granted the application, holding that the records were exempt from disclosure under both the common-law settlement privilege and section 19 of the Freedom of Information and Protection of Privacy Act.

The court emphasized that the public interest in encouraging settlement trumps the public interest in transparency of government action in these circumstances.

The applicants, children attending private faith-based schools, challenged Ontario's failure to provide them with special education benefits available in public schools.

They argued this exclusion violated their freedom of religion and equality rights under the Charter.

The Divisional Court dismissed the application, finding that the Supreme Court's decision in Adler v. Ontario foreclosed the freedom of religion claim.

The court also held that the challenged regulation, O. Reg. 386/99, which provides some health services to private school students, is an ameliorative program under s. 15(2) of the Charter and does not discriminate on the basis of disability.

A secondary claim seeking language therapy under the regulation was also dismissed, with the court finding a rational basis for the province's distinction between speech and language disorders.

The applicant, Bot Construction Limited, sought judicial review of the Ministry of Transportation's decision to award a road construction contract to a competing bidder.

The applicant argued that the winning bid was non-compliant because it failed to declare imported steel, despite the project specifications requiring rolled steel beams that are unavailable in Canada.

The Divisional Court found that the Ministry's decision that the bid was compliant was unreasonable, as the bid could not meet the mandatory specifications using only Canadian steel.

The Court held that the Ministry breached its duty of fairness by privately accepting the winning bidder's proposal to substitute welded steel without notifying other bidders, and quashed the contract award.

The defendants appealed an interlocutory order dismissing their motion to dismiss the plaintiff's action for delay.

The action, arising from alleged dog attacks in 1996 and 1997, had been delayed for 11 years since the events.

The Divisional Court found that the plaintiff failed to provide an explanation for the delay and failed to rebut the presumption of prejudice.

The appeal was allowed and the plaintiff's action was dismissed for delay.

The applicant fertility centre sought judicial review of an Ontario Labour Relations Board decision declaring that a 'health services integration' had occurred when the centre moved out of a hospital and hired some of the hospital's former unionized employees.

The Divisional Court applied the Dunsmuir framework to determine that the standard of review for the Board's interpretation of the Public Sector Labour Relations Transition Act, 1997 was reasonableness.

The Court dismissed the application, finding the Board's conclusion that the centre was an integrated component of the hospital and its decision to apply the Act were reasonable and supported by the evidence.

The moving party sought to quash a Notice of Appeal filed by the appellant regarding a trial judgment for damages arising from an unprovoked assault and a subsequent costs award.

The appellant argued the time to appeal ran from the formal entry of the judgment, not the date of the decisions.

The court held that time runs from the date of pronouncement, rendering the appeal out of time.

The court quashed the Notice of Appeal and declined to extend the time to appeal the merits decision due to lengthy delay and weak grounds.

However, the court granted an extension of time to seek leave to appeal the costs decision, finding the delay brief and the proportionality of the costs arguable.

The appellant appealed an order of a motions judge that reversed a master's interlocutory order permitting the appellant to file a supplementary affidavit after cross-examinations were completed.

The Divisional Court allowed the appeal, finding that the motions judge erred in law by failing to apply the deferential standard of palpable and overriding error to the master's discretionary decision.

The court reinstated the master's order, holding that the supplementary affidavit was highly relevant, adequately explained, and caused no non-compensable prejudice.

Apotex Inc. sought judicial review of decisions by the Executive Officer of the Ontario Public Drug Programs refusing to increase the reimbursable pricing of three generic antibiotic drugs.

The applicant argued that the historic pricing exemption should apply to allow price increases and challenged the Executive Officer's reliance on the single source pricing exemption to negotiate a price increase with a competitor.

The Divisional Court dismissed the application, finding that the Executive Officer's interpretation of the legislation and regulations was reasonable and that her actions to ensure a continued supply of the drugs were lawful and in the public interest.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision terminating his loss of earnings benefits.

The Tribunal had concluded that the applicant's repetitive strain injury resolved on the date of a normal EMG study, despite ongoing symptoms documented by treating physicians.

The Divisional Court found the Tribunal's decision unreasonable, as it could not be reconciled with the undisputed medical evidence confirming ongoing impairment.

The application was allowed and the matter remitted to a differently constituted panel.

The applicant sought judicial review of an interlocutory decision by the Licence Appeal Tribunal to strike additional grounds and particulars from a Supplemental Notice of Proposal.

The Divisional Court dismissed the application as premature, emphasizing the strong presumption that administrative tribunal procedures should be completed before seeking judicial review, absent exceptional circumstances.

The moving parties sought leave to appeal a decision of the Ontario Municipal Board and a subsequent Amending Order regarding their application for minor variances to a zoning by-law.

The moving parties had built a two-storey addition without a building permit and sought variances to approve it.

At the Board hearing, the moving parties raised procedural issues, alleged a reasonable apprehension of bias, and then left the hearing before evidence was called.

The Board proceeded in their absence and dismissed the appeal.

The Divisional Court dismissed the motions for leave to appeal, finding no jurisdictional error, error of law, or denial of procedural fairness by the Board.

Following the dismissal of the plaintiff's motion to vary a judgment in a Small Claims Court appeal, the court received written submissions on costs.

The court awarded costs of the motion to the Ernst and Young defendants, fixed at $1,000 all-inclusive.

The appellant father appealed an order requiring him to pay retroactive base child support and proportional childcare expenses.

He sought to introduce fresh evidence of an updated Family Responsibility Office statement showing a $5,802 overpayment.

The Divisional Court admitted the fresh evidence to ensure a just outcome, despite the appellant's lack of due diligence.

The court dismissed the substantive appeal, finding no error in the motion judge's decision to award retroactive support, but corrected a mathematical error in the calculation of the respondent mother's income, reducing the appellant's childcare expense arrears.

The appellant was credited for the overpayment.

The plaintiffs appealed an order refusing to set aside a registrar's order that dismissed their motor vehicle accident claim for delay.

The defendant had entered bankruptcy shortly after being served, triggering an automatic stay under the Bankruptcy and Insolvency Act.

The Divisional Court allowed the appeal, finding that the Master erred by failing to consider the ultimate justice of the case, given the lack of prejudice to the insurer.

Furthermore, the court held that the bankruptcy stay deprived the registrar of jurisdiction to dismiss the action, rendering the dismissal order a nullity.

The landlord brought a motion to set aside the tenants' notice of appeal from an eviction order issued by the Landlord and Tenant Board.

The tenants argued the Board erred by failing to consider their efforts to pay rent with cheques that were ultimately dishonoured.

The Divisional Court granted the landlord's motion and quashed the appeal, finding that the tenants' ground of appeal did not raise a question of law and had no arguable merit.

Costs of $1,000 were awarded to the landlord.

The appellant appealed the dismissal of his Small Claims Court action against his real estate lawyer for professional negligence and breach of contract arising from a four-day delay in closing a home purchase.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the delay was caused by the appellant's failure to obtain fire insurance, which prevented the tendering of mortgage funds.

The court also rejected the appellant's claim of a denial of due process, finding the trial judge's interventions during the hearing were appropriate and did not demonstrate bias.

The Director of the Ontario Disability Support Program brought motions to dismiss three appeals to the Divisional Court due to a six-year delay in perfecting them.

The appellants argued the delay was due to awaiting outcomes of second claims, waiting for appellate decisions, a computer error by the Registrar, and clinic workload.

The court found it could not assess the potential prejudice to the Director without the medical records and Tribunal notes, which would be before the full panel.

The motions were adjourned to the panel hearing the appeals.