ODC 2009

Following the dismissal of the plaintiffs' appeal from a decision refusing certification of a class action, and the dismissal of the defendant's cross-appeal regarding costs, the Divisional Court determined the costs of the appeal.

The court found that the action involved a matter of public interest, particularly given the promulgation of the Cigarette Ignition Propensity Regulations.

Applying section 31(1) of the Class Proceedings Act and Rule 57, the court ordered that each side bear its own costs of the appeal and cross-appeal.

The appellants appealed a decision of the Small Claims Court dismissing their statement of claim on a motion by the respondent.

The motions judge provided no written or oral reasons for the dismissal, simply endorsing the record with 'dismissed'.

The Divisional Court held that litigants are entitled to know the reasons for a decision, and the complete absence of reasons made appellate review impossible.

The appeal was allowed, the decision set aside, and the matter remitted to the Small Claims Court for a new hearing before a different judge.

The applicant union sought judicial review of a labour arbitrator's decision that denied a collective agreement severance benefit to employees terminated for absenteeism arising from a disability.

The Divisional Court upheld the arbitrator's decision, finding that the severance provision was designed to benefit employees subject to permanent lay-off, not all terminated employees.

The court agreed that comparing disabled persons to other persons terminated for cause did not violate the Human Rights Code.

The application for judicial review was dismissed.

The appellant ex-husband appealed a Master's order denying his request to amend his defamation claim against his ex-wife.

The proposed amendments related to statements the ex-wife made to a psychologist conducting a court-appointed custody assessment.

The Divisional Court dismissed the appeal, affirming that statements made during a custody assessment are protected by absolute privilege to ensure full and free disclosure in family law proceedings.

The tenant sought an extension of time to appeal a decision regarding her tenancy.

The Divisional Court granted the extension on the condition that the tenant pay rent on a go-forward basis, file proof of payment, and order transcripts for the appeal.

If the conditions are not met, the appeal will be dismissed without further notice.

The applicant race track sought judicial review of an Ontario Racing Commission (ORC) decision ordering it to allow the respondent owners' horses to enter races.

The race track had indefinitely banned the horses after another horse trained by the same trainer tested positive for a banned performance-enhancing drug, despite the owners' horses testing negative and the owners having unblemished records.

The Divisional Court dismissed the application, finding the ORC's decision reasonable.

The ORC properly applied the burden of proof, considered relevant evidence, and correctly balanced the race track's private contractual rights against the public interest in fairness and the integrity of horse racing.

The applicant Union sought judicial review of an Ontario Labour Relations Board decision dismissing its grievances.

The Union argued that work paid as maintenance under the General Presidents' Maintenance Agreement was actually construction and should have been paid at a higher scale under the Principal Agreement.

The Board found the Union was estopped from relying on the Principal Agreement because its business agent agreed the work would be done under the GPMA.

The Divisional Court held that the Board's application of estoppel, despite section 162 of the Labour Relations Act, was reasonable and dismissed the application.

The tenants appealed a decision of the Landlord and Tenant Board refusing to set aside an eviction order.

The appellants argued they did not receive a fair hearing due to mental illness and that the Tribunal failed to inquire whether the landlord accommodated the disability regarding late rent payments.

The Divisional Court dismissed the appeal, finding the Tribunal Member provided adequate guidance to the self-represented appellant and that there was no evidence the landlord was ever advised of the disability during the tenancy.

The moving party, the Attorney General of Canada, sought leave to appeal an order certifying a class action brought on behalf of Canadian cattle farmers for economic losses arising from the discovery of BSE in 2003.

The moving party argued the motions judge erred in finding an identifiable class, certifying negligence as a common issue, and concluding a class proceeding was the preferable procedure.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions on class-wide proof of loss and no reason to doubt the correctness of the motions judge's application of the certification criteria under the Class Proceedings Act.

The appellant appealed a trial judgment dismissing his solicitor's negligence claim against his former lawyer, who had represented him in a motor vehicle accident claim.

The trial judge had found no negligence and no causal connection to the appellant's loss, as the appellant had discharged subsequent counsel and proceeded to trial self-represented.

The Divisional Court applied the standard of palpable and overriding error, found ample grounds for the trial judge's conclusions, and dismissed the appeal.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his complaint of an unlawful reprisal under s. 50 of the Occupational Health and Safety Act, as well as several subsequent reconsideration decisions.

The application was brought nearly six years after the initial decision.

The Divisional Court applied the reasonableness standard of review post-Dunsmuir and found the Board's decisions eminently reasonable.

The Court also held that the Board's refusal to grant the self-represented applicant an adjournment on the day of the hearing was a reasonable exercise of its discretion.

The application for judicial review was dismissed.

The applicants sought judicial review of a decision by the Director of Adoption Services to place their international adoption on hold.

The hold was initiated after the estranged sister of one of the applicants made historic sexual abuse allegations just days before the applicants were scheduled to travel to finalize the adoption.

The Director placed the hold and required a new home study without providing the applicants an opportunity to respond or detailing the allegations.

The Divisional Court granted the application, finding that the Director breached procedural fairness by failing to give the applicants a meaningful opportunity to respond.

The court also found the requirement for a further home study unreasonable given the unchallenged expert evidence refuting the risk.

The Director's decision was quashed and the original approval was reinstated.

The appellant appealed a decision of the Criminal Injuries Compensation Board denying her claims for funeral expenses and nervous shock following the murder of her son.

The Board had denied the claims under s. 17(1) of the Compensation for Victims of Crime Act, finding the son's death was a direct result of his involvement in illegal drug transactions.

The Divisional Court allowed the appeal, holding that the Board erred in law by failing to undertake a proportionality analysis between the victim's alleged conduct and the offenders' criminal conduct.

The matter was remitted to a differently constituted Board for rehearing.

The appellants, a travel agent and agency, appealed a Small Claims Court decision finding them liable for failing to inform the respondent clients about passport validity requirements for travel to Panama.

The respondents were denied boarding because their passports expired within six months of travel.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the appellants breached their statutory duties under the Travel Industry Act to advise the clients of the passport restrictions both before entering the contract and in writing afterward.

The applicant sought an interim order staying the university's decision to expel him for academic misconduct pending his application for judicial review.

The university's Senate Appeals Committee had concluded that the applicant knowingly submitted falsified documents in support of an appeal from a plagiarism charge.

The Divisional Court dismissed the motion for interim relief, finding that the applicant failed to meet the burden of proof required for an interim stay, but ordered the judicial review to be heard on an expedited basis.

The Children's Aid Society applied for judicial review of a decision by the Child and Family Services Review Board, which found it had jurisdiction to hear a review of the Society's decision to remove a child from foster parents.

The foster parents had been fostering with a view to adopt, but the Society failed to complete the formal statutory requirements for an adoption placement, including registering the placement and notifying the child's Band.

The Divisional Court held that the judicial review was not premature given the urgency of the child's permanency planning.

The Court quashed the Board's decision, finding that without the formal statutory requirements being met, the child was not legally 'placed for adoption' under the Child and Family Services Act, and therefore the Board lacked jurisdiction to hear the matter.

The appellant brought a motion for an extension of time to file appeal documents.

The appellant had previously been granted leave to appeal a costs decision but failed to file the notice of appeal with the court, despite serving it on the respondents.

The court found that the appellant always intended to appeal and that the delay was partly due to settlement discussions between the parties.

The motion for an extension of time was granted, with costs of $400 awarded against the appellant, to be deducted from a previous costs award.

The Ministry of Natural Resources and the Regional Municipality of Halton appealed an order of the Ontario Municipal Board granting a $60,000 costs premium to the respondent.

The Board had relied on a Court of Appeal decision that was subsequently overturned by the Supreme Court of Canada, which held that a risk premium cannot be exacted against an unsuccessful party.

The Divisional Court found that the Board's rules focus on the conduct of a party, not the result achieved or the risk assumed by counsel.

The appeal was allowed and the costs premium was set aside.

The appellant appealed a Master's decision dismissing his motions to set aside the Registrar's dismissal of two actions for delay.

The Master had held she had no discretion to extend the time for bringing the motions and that the expiry of the limitation period created deemed prejudice.

The Divisional Court allowed the appeal, finding the Master erred in law by ignoring the overarching discretion in Rule 2.03 and by presuming prejudice solely from the expiry of the limitation period when the respondents had early notice of the claims.

The dismissal order for the second action was set aside.

The applicant school board sought judicial review of an arbitration award that reinstated a teacher who had been terminated for professional misconduct involving special needs students.

The arbitration board found the teacher's conduct warranted a significant disciplinary response but not termination, effectively imposing a four-and-a-half-year suspension without pay.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding that the arbitrator's decision to give the teacher a second chance fell within a range of reasonable outcomes and was supported by the evidence.