ODC 2009

The appellant landlord appealed a Small Claims Court decision dismissing its claim for unauthorized parking fees, bailiff charges, and legal fees against the respondent tenants.

The trial judge found that the vehicles were not in the possession or control of the tenants and that the landlord acted precipitously in calling a bailiff.

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

The applicant sought judicial review of a decision by the Criminal Injuries Compensation Board denying his claim for compensation because he failed to promptly report the assault to police.

The Divisional Court dismissed the application for judicial review as the applicant had not exhausted his statutory appeal rights.

Treating the matter as an appeal, the Court found no error of law in the Board's decision, noting the Board properly exercised its discretion under s. 17(2) of the Compensation for Victims of Crime Act based on the applicant's delay in reporting the incident.

The appellant appealed an order of the Master refusing to re-open a final judgment of foreclosure granted three years earlier.

The foreclosure judgment had been granted on consent, and the mortgagee had elected not to request a reference.

The Divisional Court dismissed the appeal, finding no error in the Master's consideration of the consent nature of the judgment, the delay, and the prejudice to the respondents.

The respondents brought a motion to a panel of the Divisional Court to vary an order that refused to strike certain material from the applicant's application record.

The material in question referenced a 'without prejudice' settlement offer made during a tax dispute.

The Divisional Court granted the motion, finding that the motions judge erred in his application of the test for settlement privilege.

The court held that the communications met the three-part test for settlement privilege and that the applicant failed to demonstrate a compelling or overriding interest of justice to justify an exception to the privilege.

The City of Ottawa sought leave to appeal an Ontario Municipal Board decision that repealed Section 3 of its Comprehensive Zoning By-Law.

The Board had found that the by-law improperly restricted property owners' rights to continue legal non-conforming uses after voluntary repairs or renovations, contrary to section 34(9)(a) of the Planning Act.

The Divisional Court determined the applicable standard of review was reasonableness and found no error in the Board's conclusion that the by-law frustrated the normal evolution of legal non-conforming uses.

Leave to appeal was dismissed, though the parties consented to restore certain unrelated subsections of the by-law.

The appellant physician appealed a decision of the Discipline Committee finding him guilty of professional misconduct for obstructing a College investigation into a complaint against another physician.

The appellant argued the Committee lacked jurisdiction, erred in denying a stay of proceedings, and made an unreasonable finding of misconduct.

The Divisional Court dismissed the appeal, holding that the Executive Committee had broad statutory authority to refer the matter, the doctrines of issue estoppel and abuse of process did not apply, and the finding that the appellant intentionally provided false information to mislead the investigation was reasonable.

The appellants appealed a trial judgment that determined the equalization payment required to separate a family business under a consent order.

The Divisional Court upheld the trial judge's findings on the valuation of the businesses, the tax treatment of parked debt under the Income Tax Act, and the scope of the issues tried.

However, the court allowed the appeal in part, finding the trial judge misapprehended evidence regarding an agreement to pay interest on unequal shareholder loans, resulting in a $108,500 credit to the appellants.

The appellant appealed a decision of the Law Society Appeal Panel which had quashed her appeal from a Hearing Panel's dismissal of her motion challenging jurisdiction.

The Law Society argued the Divisional Court lacked jurisdiction because the Appeal Panel's decision was not a final order under section 49.38 of the Law Society Act.

The Divisional Court agreed, finding that the right of appeal is statutory and limited to final dispositions of disciplinary proceedings.

The appeal was quashed for want of jurisdiction.

The appellant successfully defended a claim for trespass and damage to property at trial, but the trial judge dismissed the claim without costs and without giving the appellant an opportunity to make costs submissions.

On appeal, the Divisional Court held that while a trial judge has discretion to refuse costs, procedural fairness requires hearing submissions first.

The court considered the matter afresh and awarded the appellant costs of the trial on a partial indemnity scale, as well as $7,000 for the appeal.

The applicant hospital sought judicial review of two interest arbitration awards that ordered retroactive wage increases for employees who were no longer actively employed.

The hospital argued that retroactivity was not a matter in dispute between the parties and that the arbitration board exceeded its jurisdiction and denied procedural fairness by deciding the issue without giving the parties an opportunity to make submissions.

The Divisional Court held that the board's decision was unreasonable because it failed to explain why it was necessary to deal with retroactivity when the parties had agreed it was not in dispute.

The Court also found a denial of procedural fairness and set aside the portion of the awards dealing with retroactivity.

The court issued an endorsement regarding the costs of an appeal from the Small Claims Court.

The respondent/plaintiff was awarded costs fixed at $5,000 on a partial indemnity scale.

The court noted that while Rule 49.10 does not apply to appeals, the plaintiff's offer to settle for $6,000 before significant appeal costs were incurred was a very significant factor in determining the quantum of costs to protect the successful plaintiff from a Pyrrhic victory.

Following the dismissal of the appellants' appeal, the successful respondents sought costs of $31,804.58.

The appellants submitted that costs should be fixed at $20,000.

The Divisional Court agreed with the appellants, fixing costs at $20,000 inclusive, noting that this amount was fair, reasonable, and proportionate to the amount at issue.

The landlord appealed a Landlord and Tenant Board decision granting the tenants a 2.5 per cent rent reduction due to the loss of green space resulting from infill construction.

The Board had found the lands constituted a 'common recreational facility' under the Tenant Protection Act, 1997.

The Divisional Court allowed the appeal, holding that ordinary green space does not meet the statutory definition of a facility, which requires something built or installed to perform a particular function.

The Court also found the Board erred in law by calculating the rent reduction using a novel mathematical approach rather than the mandatory method prescribed by regulation.

The moving party municipality sought leave to appeal a motion judge's dismissal of its motions for summary judgment and determination of a question of law.

The underlying action involved claims of misfeasance and negligence related to the closing of zoning applications.

The Divisional Court granted leave to appeal on the issue of whether the municipality was immune from suit under s. 20(1)(a) of the Oak Ridges Moraine Conservation Act, finding there was good reason to doubt the correctness of the motion judge's decision and that the issue was of general importance.

Leave to appeal on the limitation period issue was denied.

The respondent parents sought costs on a full indemnity basis against the children's aid society following an appeal.

The court applied the Family Law Rules, noting that the presumption of costs to the successful party does not apply in child protection cases involving a government agency.

The court found that the society did not act unfairly or unreasonably in pursuing the appeal, as it acted out of concern for the child's best interests and was supported by the Office of the Children's Lawyer.

Consequently, no costs were awarded.

The applicant employer sought a stay of an Ontario Labour Relations Board (OLRB) decision certifying the respondent union, pending an application for judicial review.

The central issue before the OLRB was whether the applicant was the true employer.

On the motion for a stay, the court considered whether the first branch of the test required a 'strong prima facie case' or merely a 'serious issue to be tried'.

The court held that in the context of OLRB decisions protected by strong privative clauses, the 'strong prima facie case' standard applies.

The court found the applicant failed to meet this standard, failed to demonstrate irreparable harm, and that the balance of convenience favoured the union.

The motion for a stay was dismissed.

The defendants sought leave to appeal an order certifying the action as a class proceeding regarding allegedly defective heart devices.

The defendants argued the motions judge misconstrued the 'some basis in fact' standard and that the class definition was overly inclusive.

The Divisional Court denied leave to appeal, finding the motions judge correctly applied the evidentiary principles from Hollick v. Toronto and made factual findings entitled to deference.

The motion was dismissed with costs fixed at $15,000.

The appellant physician sought a stay of the College's Discipline Committee penalty revoking his licence to practice pending his appeal.

The penalty was based on findings of historic sexual misconduct.

Applying the RJR-MacDonald test, the court found a serious issue to be tried, irreparable harm to the appellant's practice and income, and that the balance of convenience favoured a stay given the historic nature of the complaints and the success of interim practice restrictions.

The motion for a stay was granted on conditions.

The Air France defendants sought leave to appeal a motion judge's decision to re-open a jurisdiction motion to allow fresh evidence regarding the application of the Montreal Convention.

The underlying action arose from an Air France runway overrun at Toronto Pearson International Airport.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting case law and no reason to doubt the correctness of the motion judge's discretionary decision to re-open the matter to determine the applicable international convention.

The plaintiffs' cross-motion for leave to appeal a costs award was also dismissed.

The 86-year-old appellant appealed a Master's order refusing to set aside a noting in default in an action for specific performance of a real estate transaction.

The appellant had entered into an unsolicited agreement to sell her home but immediately retained counsel to contest its validity.

Due to her counsel's inadvertence, a statement of defence was not filed.

The respondent's counsel noted her in default without warning, waiting six months to notify her counsel.

The Divisional Court allowed the appeal, finding the Master made palpable and overriding errors by ignoring the overriding principle of resolving disputes on their merits and by failing to consider the sharp practice of the respondent's counsel.