ODC 2009

The plaintiffs appealed a master's decision refusing to add a party (Trailcon) and refusing to allow amendments to the pleadings after the expiry of the limitation period.

The defendants cross-appealed the master's decision to add another party (684).

The Divisional Court allowed the appeal, finding that Trailcon's insurer had constructive notice of the claim, constituting special circumstances to overcome the limitation period.

The court also allowed the amendments, finding they were alternative theories of liability rather than new causes of action.

The cross-appeal was dismissed.

The applicant sought judicial review of an interlocutory order made by a Small Claims Court judge setting aside a default judgment.

The Divisional Court noted that while it has jurisdiction under the Judicial Review Procedures Act to review such decisions, it will generally decline to do so where the application is essentially an appeal of an interlocutory order, as the Courts of Justice Act does not permit appeals from interlocutory orders of the Small Claims Court.

The court found no reason to interfere, holding that the Small Claims Court judge acted within his jurisdiction.

The application for judicial review was dismissed.

The defendants appealed an order of the motion judge regarding the plaintiffs' failure to comply with discovery undertakings.

The Divisional Court found that the motion judge's order was vague and lacked reasons, and noted that the Rules of Civil Procedure do not allow a party to delay providing particulars until 90 days before trial.

As the plaintiffs had satisfied most undertakings after the appeal was perfected, the Court set aside the motion judge's order and directed the plaintiffs to particularize their future healthcare costs within 14 days, failing which the action could be struck from the trial list.

The appellants appealed a decision of the Licence Appeal Tribunal upholding the revocation of their registration as a private career college.

The appellants argued that the adjudicator's comments and questions during the 25-day hearing created a reasonable apprehension of bias.

The Divisional Court found that the adjudicator's interventions, including accusing the self-represented appellant of misleading the tribunal and improperly questioning him about ties to a terrorist organization, gave rise to a reasonable apprehension of bias.

The appeal was allowed and the matter remitted for a re-hearing.

The appellant sought leave to appeal a decision dismissing its motion for an interim preservation order regarding a $3.5 million cash collateral drawn from a standby letter of credit.

The motions judge had found that the appellant had no proprietary interest in the funds and that the law of guarantee did not apply.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the decision and noting that the application of guarantee law to a standby letter of credit in the context of an underlying agreement is an issue of broader significance.

A stay of the order directing payment of the funds was also granted pending the appeal.

The appellant appealed a Master's decisions interpreting Minutes of Settlement in a construction lien action regarding roof repairs.

The Divisional Court held it lacked jurisdiction to hear the appeal under section 71(1) of the Construction Lien Act because the Master's report had not yet been confirmed.

In the alternative, reviewing the merits, the court found the Master correctly interpreted the settlement agreement's definition of 'Work' and made no palpable and overriding errors of fact.

The appeal was dismissed.

The appellant appealed a Small Claims Court decision dismissing his claim against the respondent bank and granting the bank's counterclaim for $10,000 on an outstanding student loan.

The appellant argued he was not in default and was eligible for interest relief and capitalization.

The Divisional Court dismissed the appeal, finding that the appellant had admitted to being in default during the trial and had already exhausted his two permitted interest capitalizations under the applicable regulations.

The appellant landlord appealed a trial decision finding that an oral agreement between the parties validly terminated a residential tenancy.

The Divisional Court allowed the appeal, holding that the Tenant Protection Act, 1997 is a complete code and mandates written notice to terminate a tenancy.

The trial judge's finding of an oral agreement was an error in law.

The court set aside the trial judgment and awarded the landlord $6,095.00 for unpaid rent, plus costs.

The applicant appealed a decision dismissing his claim against the respondent bank for seizing a GIC and funds from his savings account to satisfy overdue credit card charges.

The applicant argued his signature on the security pledge agreements was forged.

The Divisional Court found no palpable and overriding error in the trial judge's factual finding that the applicant signed the agreements.

Furthermore, the court upheld the finding that the bank was entitled to exercise its common law right of set off.

The appeal was dismissed.

The self-represented appellant appealed a Small Claims Court decision dismissing his solicitor negligence claim against the respondent law firm.

The appellant alleged his former solicitor negligently handled his breach of fiduciary duty claim against a real estate agent, pressuring him into a settlement.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or application of the standard of care for solicitors.

The applicant sought leave to appeal a decision of the Ontario Municipal Board that struck out affidavit evidence filed in support of a motion for full indemnity costs.

The excluded evidence detailed prior business dealings between the parties, which the applicant alleged proved the respondent's appeal was brought in bad faith.

The Divisional Court granted leave to appeal, finding reason to doubt the Board's conclusion that pre-proceeding conduct was irrelevant to costs.

The Court held that denying the opportunity to review conduct that occurred prior to launching the appeal could amount to a denial of natural justice.

The appellant appealed a decision of the Financial Services Tribunal refusing his application for a mortgage broker licence.

The Tribunal had denied the licence due to the appellant's recent criminal convictions for assault, criminal harassment, and mischief, as well as his false statement on the application that there were no outstanding criminal charges against him.

The Divisional Court applied a reasonableness standard of review, finding that the Tribunal's assessment of the appellant's honesty and integrity within the context of the mortgage industry was well-founded.

The appeal was dismissed with costs awarded to the respondent.

The moving party, an uninsured motorist, sought an extension of time and leave to appeal a trial judge's costs order.

Following the dismissal of the plaintiffs' personal injury action due to exaggerated claims, the trial judge ordered the moving party to be jointly and severally liable for the responding insurer's costs.

The moving party argued that as a successful party against the plaintiffs, he should not be liable for costs, and questioned whether the insurer had an independent right to claim costs against him under section 265 of the Insurance Act.

The court granted the extension of time and leave to appeal, finding sufficient uncertainty in the law regarding the intersection of the insurer's common law rights and the statutory subrogation scheme.

The applicant applied for judicial review of the government's response to the recommendations of the Deputy Judges Remuneration Commission.

The Commission had recommended significant increases to the per diem rate for deputy judges.

The government accepted the initial increase for 2005 but rejected the subsequent annual increases, substituting lower increases based on economic conditions and public sector compensation trends.

The Divisional Court dismissed the application, finding that the government's response met the constitutional standard of rationality as it articulated legitimate reasons based on a reasonable factual foundation and respected the commission process.

The appellants appealed a decision of the Ontario Rental Housing Tribunal terminating their tenancies and ordering their eviction under s. 65(1) of the Tenant Protection Act.

Police had executed search warrants and found illegal firearms and drugs in the appellants' units, leading to the arrest of family members and guests.

The appellants argued they were unaware of the illegal items and that s. 65(1) should be interpreted as a strict liability offence allowing a due diligence defence.

The Divisional Court dismissed the appeal, holding that s. 65(1) does not incorporate a fault element or due diligence defence, and that the Board reasonably exercised its discretion under s. 83 to refuse relief from eviction.

The appellant appealed a trial judgment regarding the equalization of net family property, arguing that the trial judge's conduct resulted in an unfair trial.

The respondent was self-represented at trial.

The Divisional Court found that the trial judge improperly assumed the role of advocate for the respondent, severely restricted the appellant's cross-examination and submissions, and improperly relied on confidential settlement and case conference briefs.

The court concluded that the trial judge's interventions and failure to provide adequate reasons breached the principles of fairness.

The appeal was allowed, the judgment set aside, and a new trial ordered.

The applicant sought judicial review of an Ontario Racing Commission decision suspending his racing licenses for ten years and imposing a $20,000 fine for administering a performance-enhancing drug (EPO) to a horse.

The applicant argued his confession to investigators was involuntary and obtained in violation of his Charter rights.

The Divisional Court dismissed the application, finding the statement was admissible under the Statutory Powers Procedure Act and statutory compulsion, and that the common law confession rule and section 7 of the Charter did not apply to these administrative proceedings.

The court also upheld the penalty as reasonable given the need for general deterrence in the horse racing industry.

The parents appealed a summary judgment order declaring their child a Crown ward without access.

They argued the motions judge erred by admitting past parenting capacity assessments and that the summary judgment rule in child protection cases violated section 7 of the Charter.

The Divisional Court dismissed the appeal, finding the assessments were expressly admissible under the Child and Family Services Act and declining to hear the Charter challenge as it was raised for the first time on appeal without an evidentiary foundation.

The plaintiffs brought a motion for leave to appeal an order setting aside a default judgment against one of the defendants.

The underlying action involved allegedly defective home renovations performed by the defendants.

The motions judge had set aside the default judgment against the defendant spouse, finding her default was unintentional and she moved promptly upon learning of it, while refusing to set it aside against her spouse and his companies.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting cases, no reason to doubt the correctness of the decision, and no public policy matters of importance raised.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Director's Delegate had overturned a preliminary arbitration order that found the respondent insured's application for mediation was time-barred.

The Divisional Court held that the Director's Delegate was reasonable in concluding that the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule did not begin to run until the insurer provided notice of refusal to pay following a negative Designated Assessment Centre report, rather than from the initial notice of stoppage of benefits.

The application for judicial review was dismissed.