ODC 2009

The Society appealed a trial judge's order returning a seven-year-old child to her mother's care under supervision.

The Society argued the trial judge made palpable and overriding errors in fact-finding and failed to properly weigh the child's best interests.

The Divisional Court dismissed the appeal regarding the child's placement, finding no palpable and overriding errors and noting that fresh evidence of the mother's recent alcohol use was insufficient to alter the result.

However, the Court allowed the appeal in part to quash a term requiring the Society to assign an American Sign Language-familiar worker, as counsel had not been given an opportunity to make submissions on that issue.

The Director of the Ontario Disability Support Program brought a motion to quash the appellant's appeal from a 'no order' issued by the Social Benefits Tribunal.

The Tribunal had issued the 'no order' because the underlying issue of an overpayment had been resolved.

The Divisional Court granted the motion and quashed the appeal, finding that without a Tribunal decision, there was no statutory basis for an appeal.

The appellant's conspiracy allegations were also dismissed.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld two arbitrators' refusals to order independent medical examinations of the respondent claimant.

The arbitrators had denied the insurer's requests primarily due to the insurer's delay in seeking the examinations until the eve of or during the arbitration hearings.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding that the Director's Delegate reasonably concluded the arbitrators had properly exercised their discretion to refuse the examinations in the interests of fairness and preventing delay.

The appeal was dismissed for delay on consent.

The respondent sought costs, including fees for preparing a draft factum in anticipation of the appeal proceeding.

The court awarded costs to the respondent on a partial indemnity basis, noting that the appellant's delay did not justify substantial indemnity costs.

The costs were fixed at $5,000, inclusive of disbursements, reflecting that the draft factum work ultimately proved unnecessary.

The appellant appealed a Tribunal decision imposing conditions on his real estate broker registration.

The respondent cross-appealed the Tribunal's finding that the appellant would conduct his business with honesty and integrity.

The Divisional Court dismissed both the appeal and cross-appeal, finding that the Tribunal had jurisdiction under s. 14(5) of the Real Estate and Business Brokers Act, 2002 to impose conditions to protect the public.

The Court also found the Tribunal's conclusion regarding the appellant's past conduct and future integrity was reasonable.

The appellant children's aid society appealed an order of the lower court in a child protection proceeding.

The Divisional Court allowed the appeal in part, quashing the paragraph of the order that required the society to assign a family worker familiar with American sign language.

The remainder of the lower court's order was confirmed, and the parties were encouraged to prepare a re-integration plan for the child prior to the resumption of school.

Prestige Toys Ltd. appealed a Licence Appeal Tribunal decision revoking its motor vehicle dealer registration due to failure to disclose material facts to purchasers and misrepresenting selling prices.

The Registrar cross-appealed the Tribunal's refusal to revoke the salesperson registration of Lioubimova, the sole officer and director.

The Divisional Court dismissed Prestige's appeal, finding the Tribunal reasonably interpreted the Motor Vehicle Dealers Act to consider the past conduct of both the corporation and its director.

The Court allowed the Registrar's cross-appeal, finding the Tribunal failed to properly analyze evidence of Lioubimova's personal involvement, and remitted her matter for a re-hearing.

The appellant brought an appeal under the Construction Lien Act from a Master's reasons before the report was confirmed.

The court previously found it lacked jurisdiction to hear the appeal, as the proper procedure was a motion to oppose confirmation under Rule 54.09.

In this endorsement on costs, the court awarded partial indemnity costs to the respondents for the jurisdictional issue, noting the appeal was unnecessary as the Master had advised the parties of the proper forum.

The court fixed costs at $2,500 for the first respondent and $1,500 for the second respondent.

The City of Toronto appealed a decision of the Ontario Municipal Board that permitted the respondent to convert a 20-storey affordable rental apartment building into a condominium.

The Divisional Court found that the Board applied the wrong legal test by merely 'having regard to' the Provincial Policy Statement 2005 instead of ensuring its decision was 'consistent with' it, as required by the Planning Act.

Furthermore, the Board failed to properly consider the specific mandatory criteria in the City's Official Plan regarding condominium conversions and the health of the rental housing market.

The appeal was allowed, the Board's decision was set aside, and the matter was remitted for a new hearing.

The appellants appealed a decision of the Assessment Review Board regarding the property tax assessments of six large office complexes.

The Board had accepted the respondents' argument that the statutory definition of 'current value' as 'fee simple, if unencumbered' required the properties to be valued as if vacant, ignoring existing leases.

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

The Court found that the entire ownership interest, including both the landlord's and tenants' interests, must be valued, and that the 1997 amendment to the Assessment Act was intended to ensure consistency in valuation by requiring the use of market rents rather than actual rents.

The applicant sought judicial review to quash a municipality's decision awarding a construction contract to a third party, alleging breaches of procedural fairness and natural justice.

The Divisional Court dismissed the application, finding that the requested remedy of certiorari or mandamus was discretionary and inappropriate because the third party had already commenced work.

The court concluded that damages would be an adequate and preferable remedy for the applicant.

L'appelante a interjeté appel du rejet de son action en diffamation à la Cour des petites créances.

Elle alléguait que l'intimée avait tenu des propos diffamatoires à son égard lors d'une évaluation de rendement et à deux de ses connaissances qui enquêtaient sous un faux prétexte.

La Cour divisionnaire a confirmé que le juge de première instance n'a pas erré en concluant que les deux connaissances agissaient comme agents de l'appelante, ce qui annulait la publication à des tierces parties.

De plus, le refus d'accorder un ajournement pour faire entendre un technicien audio constituait un exercice raisonnable de la discrétion judiciaire.

L'appel a été rejeté.

The applicants sought judicial review of decisions by two coroners refusing to issue a summons to a government official to testify about the composition of the jury roll in the Thunder Bay district, specifically regarding the representation of First Nations individuals.

The Divisional Court dismissed the applications, holding that coroners have no statutory authority under the Coroners Act to inquire into or remedy the process used by the sheriff to compile the jury roll under the Juries Act.

The court found no jurisdictional error or breach of natural justice in the coroners' refusals.

The applicant sought judicial review of two decisions by the Ontario Labour Relations Board that adjourned his unfair representation complaints against the faculty association pending the outcome of a related grievance arbitration.

The applicant alleged procedural unfairness, reasonable apprehension of bias, and unreasonableness in the Board's decision to grant the adjournment and extend time for the respondents.

The Divisional Court dismissed the application, finding no denial of procedural fairness, no reasonable apprehension of bias, and that the Board's discretionary decision to adjourn the premature complaints was reasonable.

The Court also noted the application was premature as the Board had not yet determined the merits of the complaints.

The appellant hospital appealed a partial summary judgment awarding the respondent architectural firm over $1 million in a construction lien action.

The motion judge had relied on an 'admission' letter sent by the hospital following a pre-trial conference.

The Divisional Court allowed the appeal and set aside the summary judgment, finding that the motion judge erred by relying on the pre-trial communication contrary to Rule 50.03 of the Rules of Civil Procedure.

The Court also found that affidavit evidence from a peer-review architect raised a genuine issue for trial regarding the completion of the contract and the validity of the invoices.

The appellant licensee appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario finding that it breached s. 45(1) of the Liquor Licence Act by permitting drunkenness on its premises, and imposing a 10-day licence suspension.

The Divisional Court dismissed the appeal, holding that s. 45(1) applies to anyone on the premises, not just patrons, and that due diligence is not an available defence in this regulatory context.

The majority found the Board's factual findings and the penalty reasonable.

A dissenting judge would have allowed the appeal on the basis that the Board failed to properly analyze whether the licensee 'permitted' the drunkenness.

The appellants appealed an order dismissing their motion to exclude the medical report and evidence of a defence expert, Dr. Bednar, prior to trial.

The motions judge had declined to rule on the admissibility, holding that such a determination should be reserved for the trial judge.

The Divisional Court dismissed the appeal, with the majority finding that it would be extremely rare for a motions judge to be in an equal or better position than the trial judge to rule on the exclusion of expert evidence.

Matlow J. dissented, arguing the motions judge had jurisdiction under Rule 37.02(1) and should have considered the merits.

The appellant, a licensed electricity distributor, appealed a decision of the Ontario Energy Board denying the recovery of approximately $15 million in deferred costs accumulated in a regulatory asset account.

The appellant argued that a 2002 interim rate order implicitly approved the deferral plan and that subsequent legislation freezing rates made the order final, entitling them to recovery.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable.

The Court held that the interim order did not approve the deferral plan and that the Board was justified in requiring a prudency review before allowing the recovery of costs from ratepayers.

The defendant sought leave to appeal an order requiring it to pay $310,500 into court pursuant to Rule 45.02.

The defendant argued there was good reason to doubt the motion judge's finding that a specific fund existed and had not been commingled.

The Divisional Court dismissed the motion for leave, finding the motion judge reasonably concluded that $310,500 remained directly traceable to the original fund and had not been commingled.

The court found no conflicting decisions and no good reason to doubt the correctness of the order.

The applicant sought judicial review of a decision by the Provincial Schools Admission Committee denying her admission to a provincial school for the deaf.

The applicant, who has a developmental brain malformation and severe language delays, communicates primarily using American Sign Language.

The Committee denied admission based on audiological reports showing normal peripheral hearing, concluding she did not have an auditory handicap.

The Divisional Court allowed the application for judicial review, finding the Committee breached procedural fairness by excluding relevant documents and hearing from a Ministry witness without the applicant's knowledge.

The Court also found the Committee failed to properly consider all medical evidence regarding the applicant's central auditory processing disorder.

The decision was set aside and remitted to a newly constituted committee.