ODC 2009

The applicant union sought judicial review of an arbitrator's decision dismissing its grievance regarding post-65 retirement benefits under a collective agreement following municipal amalgamation.

The union argued the arbitrator unreasonably rejected extrinsic evidence and misinterpreted a grand-parenting clause.

The Divisional Court dismissed the application, finding the arbitrator's conclusions on both the extrinsic evidence and the interpretation of the eligibility requirements were reasonable.

The plaintiff was catastrophically injured in a motor vehicle accident.

The police report and the defendant's initial pleadings identified the defendant driver as the owner of the vehicle.

After the two-year limitation period expired, the plaintiff obtained a vehicle ownership search revealing a leasing company was the actual owner.

The plaintiff successfully moved to add the leasing company as a defendant.

The third-party insurer appealed.

The Divisional Court dismissed the appeal, holding that under the discoverability principle, the plaintiff could not reasonably have discovered the true owner earlier.

Alternatively, special circumstances justified adding the defendant despite the expired limitation period.

The plaintiff brought a motion to enforce an alleged settlement agreement reached between counsel regarding a Small Claims Court appeal.

The plaintiff argued that the parties had agreed to a 'walk away' settlement, supported by email correspondence and draft Minutes of Settlement to which the defendants' counsel did not respond.

The defendants denied that a settlement was reached, claiming they had requested a contribution towards costs.

The court dismissed the motion, finding that the conflicting evidence raised a credibility issue that could not be resolved on a paper record, applying the standard of a summary judgment motion.

No costs were awarded due to the defendants' counsel's failure to respond to correspondence and inclusion of irrelevant matters in their materials.

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

The motions judge provided no reasons, requiring the Divisional Court to hear the matter de novo.

The action, commenced in 1998 for false arrest, saw little activity until 2008 when the plaintiff served an expert report.

The court found the delay was not intentional or contumelious, as the plaintiff had difficulty obtaining an expert willing to testify against police.

The defendants failed to show prejudice or a substantial risk that a fair trial would not be possible.

The appeal was dismissed, though the court strongly criticized the motions judge's failure to provide reasons.

The appellant husband appealed a trial decision ordering him to pay spousal support of $1,500 per month for five years and thereafter until the respondent wife obtained employment.

The parties had a short relationship of three-and-a-half years with no children.

The Divisional Court upheld the quantum of support, finding no palpable and overriding error, but found the indeterminate duration to be an error in principle given the short marriage.

The appeal was allowed in part to impose a firm termination date for spousal support.

The self-represented plaintiff brought a motion for an extension of time to seek leave to appeal an order regarding the release of her solicitor's file.

The court dismissed the motion, finding no evidence to explain the delay in bringing the motion.

Furthermore, the court held that the tests for leave to appeal under Rule 62.02(4) were not met, as there was no conflicting decision and no good reason to doubt the correctness of the original order, which was based on the evidence before the motion judge.

The appellant police officer appealed a finding of misconduct for insubordination after conducting CPIC searches on his wife's vehicle at her request.

The Toronto Police Service cross-appealed the Commission's decision to reduce the officer's penalty from a seven-day to a three-day forfeiture.

The Divisional Court dismissed both appeals, finding that the Commission reasonably concluded the CPIC searches were not exclusively for police business and that the Hearing Officer implicitly rejected the officer's defence of honest belief.

The Court also upheld the Commission's interpretation of the Police Services Act, confirming that prior informal discipline must be expunged after two years and cannot be considered in sentencing unless a new finding of misconduct is proven within that period.

The appellant appealed a trial judgment dismissing her action to set aside a mutual release on the ground of economic duress.

The Divisional Court found no palpable and overriding error in the trial judge's findings of fact, including the rejection of the appellant's claim that the respondent threatened to damage the premises.

The appeal was dismissed with costs fixed at $300.

The appellant appealed a decision of the Licence Appeal Tribunal directing the Registrar to refuse his registration as a motor vehicle salesperson.

The refusal was based on the appellant's past conduct, which included a twenty-year ban from trading in securities by the Ontario Securities Commission for grave violations.

The Divisional Court found that the Tribunal's decision was reasonable, as it was entitled to rely on the Agreed Statement of Facts from the OSC proceedings and conclude that the appellant evaded responsibility for his past actions.

The appeal was dismissed with costs.

The appellant appealed a Small Claims Court decision finding it liable for demurrage charges incurred due to delays in returning railcars to the respondent railway.

The appellant argued it was not a 'shipper' and had no direct contract with the respondent.

The Divisional Court dismissed the appeal, upholding the trial judge's finding that the appellant controlled the timing of the railcars' delivery and return, fitting the definition of a 'shipper' under the Canadian Transportation Act, and was therefore responsible for the delay and associated charges.

The appellants, a contractor and an intermediary, appealed a Small Claims Court judgment finding them in breach of a home renovation contract and awarding the respondents $9,500.

The trial judge had found the contractor breached the contract by demanding a scheduled installment payment before completing equivalent work.

The Divisional Court allowed the appeal, holding that the trial judge erred by implying a term that contradicted the written payment schedule, which did not require work to be completed before installments were due.

The court also found the damages calculation resulted in a windfall.

The respondents' claim was dismissed, and the appellants' counterclaim was remitted for an assessment of damages.

The appellant appealed a Small Claims Court judgment awarding the respondent $1,628.98 in quantum meruit for boat repairs.

The appellant argued the claim was barred by Part VI of the Consumer Protection Act, 2002 because the respondent failed to provide a written estimate.

The Divisional Court dismissed the appeal, finding that the Consumer Protection Act, 2002 was not yet in force when the repairs occurred.

Furthermore, the predecessor legislation, the Motor Vehicle Repair Act, did not apply because a boat does not fall within the definition of a 'motor vehicle' under the Highway Traffic Act.

The defendants sought leave to appeal a decision dismissing their motion to strike the plaintiff's defamation claim.

The claim arose from a letter and draft Statement of Claim sent by the defendants to a town planner prior to commencing litigation.

The motions judge had found that absolute privilege might not apply if the communication's objective was to induce false testimony.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision, as it appeared to confuse the considerations relevant to absolute privilege with those of qualified privilege by factoring in motivation or bad faith.

The appellants brought a civil action in Small Claims Court against a judge of the Ontario Court of Justice, alleging injurious falsehood, misfeasance in public office, obstruction of justice, and fabricating evidence.

The claims arose from the judge's refusal to allow one appellant to act as agent for the other in family court, and the judge's subsequent editing of the hearing transcript.

The Small Claims Court dismissed the action without reasons.

On appeal, the Divisional Court held that while the failure to provide reasons was an error of law, the matter could be decided de novo.

The court dismissed the appeal, finding that the judge's actions were carried out in the course of his judicial functions and were therefore protected by absolute judicial immunity.

The applicant sought a stay of an Ontario Municipal Board (OMB) hearing regarding minor variances granted to her neighbour, pending the determination of her application for judicial review.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicant would not suffer irreparable harm because the OMB hearing is a hearing de novo where the onus remains on the respondent.

The balance of convenience favoured proceeding with the OMB hearing.

The application for a stay was dismissed.

The appellants appealed a decision finding they acted oppressively towards the respondent, a minority shareholder and president of the company.

The parties had a unanimous shareholder agreement guaranteeing the respondent's position and salary.

While the respondent was hospitalized, the appellants terminated his salary, removed him as president, and allowed receivables from their own company to build up, harming the shared business.

The Divisional Court dismissed the appeal, holding that the business judgment rule does not override express terms of a unanimous shareholder agreement.

The court upheld the findings of oppression, the inclusion of the wrongful dismissal claim within the oppression application, and the order making the appellants jointly and severally liable.

The moving party sought leave to appeal a decision dismissing its motion to vary the terms of an injunction.

The moving party argued the decision conflicted with other cases and there was good reason to doubt its correctness.

The court dismissed the motion, finding no conflict in principle, no reason to doubt the correctness of the order, and that the proposed appeal did not involve matters of general public importance.

Costs of $5,000 were awarded to the responding party.

The applicants sought judicial review of the Town of Aurora's decision to refuse their request to erect a fence on their properties, which were subject to an easement in favour of the Town.

The Divisional Court dismissed the application, finding that the Town's decision was an exercise of its contractual property rights under the easement, not a statutory power of decision.

The court also held that while the Town owed a common law duty of procedural fairness, it had met this duty by providing a fair process and considering relevant submissions from all affected landowners.

The appellant appealed the dismissal of her motion for certification of a class proceeding against a tour operator regarding a norovirus outbreak at resorts in the Dominican Republic.

The Divisional Court found that while the motions judge did not err in narrowing the class definition, he erred in principle in his analysis of the preferable procedure criterion by failing to assess it in the context of the narrowed class.

The appeal was allowed, the dismissal and costs orders were set aside, and the matter was referred back to the motions judge for consideration of a revised litigation plan.

The appellant psychologist provided treatment to the respondent, an injured worker, beyond the sessions approved by the WSIB.

The appellant provided the services based on assurances from the respondent's paralegal that the WSIB would pay.

When the WSIB did not pay, the appellant sued the respondent in Small Claims Court for her unpaid account.

The trial judge dismissed the claim, finding no contract and no unjust enrichment.

The Divisional Court dismissed the appeal, holding that the trial judge made no palpable and overriding error in finding that the respondent had made it clear he could not pay, and that the appellant had assumed the risk of non-payment by the WSIB.