ODC 2009

The individual defendants, who were architects and a contractor, sought leave to appeal a motions judge's decision refusing to grant summary judgment dismissing the claims against them personally.

The plaintiffs had sued the individuals despite the relevant contracts being with their respective corporations.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's application of the summary judgment test.

The court noted that the motions judge allowed the claims to proceed based on 'just barely some factual basis' rather than requiring a genuine issue for trial, and that the scope of personal liability for corporate directors and employees is a matter of public importance.

The mother appealed an order making her two young children Crown wards with no access, and moved for a stay to reinstate access pending the appeal.

The Children's Aid Society brought a cross-motion for summary judgment to dismiss the appeal under Rule 38(28) of the Family Law Rules.

The court found that the trial judge had given adequate consideration to the proposed kinship placement with the maternal grandparents and made no palpable and overriding errors.

Concluding that the appeal had no chance of success, the court granted summary judgment dismissing the appeal.

The mother's motion for a stay was also dismissed, as there was no serious issue to be tried and reinstating access was not in the children's best interests.

The defendants appealed a Master's decision refusing to grant leave to defend under s. 54(3) of the Construction Lien Act.

The defendants' statement of defence had previously been struck for failing to comply with a court order regarding undertakings, a decision upheld on appeal.

The Divisional Court dismissed the appeal, holding that s. 54(3) applies only to a default in the delivery of pleadings, not where pleadings have been delivered and subsequently struck.

The court further noted that even if the section applied, the court retains discretion to refuse leave where the motion constitutes a collateral attack and an abuse of process.

The appellants sued their former solicitor for negligence after discovering a merged title issue under the Planning Act prior to closing a real estate transaction.

The solicitor offered to correct the issue at his own expense via a nunc pro tunc application, but the appellants' new lawyer secretly pursued a parallel severance application and sought to recover those costs.

The trial judge found the solicitor negligent but held the costs of the parallel application were not reasonably foreseeable.

The trial judge also awarded costs against the appellants for failing to accept settlement offers that exceeded their trial recovery.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's foreseeability analysis or costs award.

The moving party sought leave to appeal a decision of the Ontario Municipal Board (OMB).

The OMB had ruled it lacked jurisdiction to award costs after a licence application for aggregate removal and the subsequent ministerial referral were withdrawn.

The Divisional Court dismissed the motion for leave to appeal, finding the OMB correctly determined that under the Aggregate Resources Act, its jurisdiction was limited to the issues specified in the referral and it had no authority to review the pre-referral process or award costs in these circumstances.

The self-represented moving party sought an extension of time and leave to appeal an interlocutory order that dismissed his appeal of a Master's case management decision.

The court granted the extension of time but dismissed the motion for leave to appeal.

The court found no error in the motions judge's decisions regarding costs, the requirement for the moving party to participate by videoconference, or proceeding in the moving party's absence when he chose not to attend.

The self-represented defendant brought a motion for leave to appeal a procedural order that referred the matter to a case management master and adjourned the plaintiff's motion for summary judgment.

The defendant argued the referral constituted an unjust bifurcation of proceedings.

The Divisional Court dismissed the motion, finding no conflicting decisions, no reason to doubt the correctness of the discretionary order, and no issues of public importance under Rule 62.02(4) of the Rules of Civil Procedure.

The appellant appealed a Small Claims Court order striking his claim for assault and Charter breaches against customs officials.

The deputy judge had struck the claim on the basis that there was no medical evidence of injuries and the officers acted reasonably.

The appellate court allowed the appeal, finding that the deputy judge erred by applying the test for summary judgment rather than the test for a motion to strike.

The court held that credibility issues and the assessment of evidence must be left for trial, and reinstated the claim with leave to amend.

The appellant's vehicle was involved in a collision and towed to the respondent's facility at the appellant's request.

The respondent paid the towing company and charged the appellant for towing and storage.

The appellant refused to pay, arguing the fees were excessive and violated the Consumer Protection Act, 2002.

The Small Claims Court awarded the respondent $1,298.50 based on quantum meruit.

On appeal, the Divisional Court upheld the decision, finding that the Consumer Protection Act did not apply because the respondent was not a 'repairer' and the services arose from an emergency.

The court found no palpable and overriding error in the trial judge's conclusion that the fees were reasonable and an agency relationship existed.

The moving parties sought leave to appeal an order removing their counsel due to an appearance of impropriety and prohibiting them from retaining another specific counsel.

The court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motions judge's conclusion that the appearance of impropriety required the protection of public confidence in the administration of justice.

Costs were awarded to the respondent trustees on a partial indemnity scale.

The appellant appealed a motion judge's decision dismissing her motion to vary child support and declining to impute additional income to the respondent.

She argued the motion judge erred by adjourning the hearing to allow the self-represented respondent to provide further medical evidence regarding his back injury, and by relying on that evidence even though it did not strictly comply with the judge's directions.

The Divisional Court majority dismissed the appeal, finding no error of law or breach of procedural fairness, as the appellant was given the opportunity to cross-examine the respondent or file responding evidence but chose not to do so.

A dissenting judge would have allowed the appeal on the basis that the medical evidence did not meet the motion judge's criteria and its use was unfair.

The appellant tenant appealed a Board order granting vacant possession to the respondent landlord, based on a finding that the leases were fraudulent.

On the morning of the hearing, the self-represented appellant requested an adjournment to retain counsel.

The Divisional Court denied the adjournment, noting the delay would prejudice the respondent's pending sale of the property.

The Court dismissed the appeal, holding that the Board's conclusion regarding the fraudulent leases was reasonable and based on credibility findings that the Court had no jurisdiction to review.

The appellant appealed a trial judgment that granted the respondent $27,641.57 and dismissed the appellant's claim for constructive dismissal.

The Divisional Court found no error in the trial judge's placement of the onus on the appellant to prove constructive dismissal after the respondent proved he had resigned.

The court also found no palpable or overriding error in the trial judge's factual findings, including her rejection of the appellant's claim that he resigned due to unaddressed safety concerns.

The appeal was dismissed with costs.

The applicant, a paralegal, sought a declaration that the Law Society of Upper Canada's by-laws regulating paralegals under the Access for Justice Act, 2006 were of no force and effect, arguing the Act infringed s. 15 of the Charter.

He also sought judicial review of the Lieutenant Governor's decision to grant royal assent to the Act.

The Divisional Court dismissed the application, holding that occupational status is not a protected ground under s. 15 of the Charter.

Furthermore, the court held that the granting of royal assent is a constitutional convention not subject to judicial review.

The defendants moved for leave to appeal a decision dismissing their motion to strike the plaintiff's statement of claim.

The plaintiff alleged inducing breach of contract and intentional interference with economic relations regarding an exclusive distribution agreement.

The Divisional Court found no reason to doubt the correctness of the motions judge's decision that the pleadings, read generously, disclosed a reasonable cause of action.

The motion for leave to appeal was dismissed.

The moving party brought a motion to quash two notices of appeal filed by the responding parties.

The responding parties sought to appeal a decision dismissing their application for an order that the moving party breached the Municipal Conflict of Interest Act.

The court held that the Act is a complete code and only provides a right of appeal for orders made under section 10.

Since no section 10 order was made, there was no jurisdiction to hear the appeal.

The motion to quash was granted and the notices of appeal were quashed.

The applicant physician brought a motion to stay a hearing before the hospital's Board of Directors regarding the termination of his hospital privileges, pending an application for judicial review.

The applicant alleged lack of notice and reasonable apprehension of bias.

The court found the applicant's case weak on the merits and that he would not suffer irreparable harm if the hearing proceeded.

The balance of convenience favoured continuing the hearing.

The motion for a stay was granted only to the extent that the Board was ordered not to disclose its decision until after the disposition of the judicial review application.

The applicant sought to have no costs awarded following an unsuccessful application and motion.

The Divisional Court held that costs should follow the event, as there was no novel issue or public interest raised.

The court rejected the York University Faculty Association's request for substantial indemnity costs and awarded $1,500 to York University and $3,500 to the Faculty Association, payable by the applicant.

The applicant professional regulatory body issued a summons to the respondent police chief for the production of a Crown brief related to criminal charges against a physician.

The respondent refused to comply, arguing that the screening process from D.P. v. Wagg applied.

On a stated case, the Divisional Court held that the public interest principles identified in Wagg apply to a summons issued by the regulatory body.

While the specific civil screening process is not strictly required, the lack of notice to the Attorney General and an opportunity to raise public interest concerns constitutes a lawful excuse for refusing to comply with the summons.

The parties were involved in multiple proceedings arising from their separation.

The husband sought to appeal an order dismissing his motion to set aside a final consent order regarding custody and access.

The wife brought a motion to dismiss the appeal, arguing it was brought to the wrong court, out of time, and was an indirect attack on interim orders.

The husband brought a cross-motion to strike the wife's motion.

The Divisional Court found that while the appeal was properly directed to the Divisional Court, the husband required but had not obtained leave to appeal.

The court refused to grant a further extension of time to seek leave, noting there was no genuine basis for the appeal to succeed as the husband knew of the alleged misrepresentations before signing the consent order.

The wife's motion to dismiss the appeal was granted, and the husband's cross-motion was dismissed.