ODC 2009

The defendant brought a motion for leave to appeal a partial summary judgment of $985,634.54 granted in favour of the plaintiff mortgagee.

The partial judgment was based on alternative claims of unjust enrichment and equitable subrogation for funds used to discharge existing debts on the defendant's property.

The defendant argued that granting partial summary judgment constituted an election by the plaintiff to abandon its claim for the entire mortgage debt.

The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the motions judge's decision that partial summary judgment is not an election.

Leave to appeal the costs award was also denied.

The moving party sought leave to appeal an interlocutory decision appointing a trust company as her interim guardian of property, pending an application by her daughters to be appointed as guardians.

The moving party argued the motions judge erred by ignoring her valid Power of Attorney and failing to find strong evidence of misconduct before appointing a third party.

The Divisional Court denied leave to appeal, finding no conflicting decisions or good reason to doubt the correctness of the motions judge's decision, which was based on the incapable person's best interests and allegations of self-dealing.

The plaintiff appealed an order of a master dismissing his personal injury action for delay at a Status Hearing.

The action arose from an alleged assault during a soccer game.

The Divisional Court allowed the appeal, finding that the master applied incorrect principles and misapprehended evidence regarding the preservation of documents.

The court noted that dismissing an action at a first Status Hearing is an extreme measure that requires more than a bald allegation of prejudice, and reinstated the action.

The defendant insurer sought leave to appeal a decision upholding a Master's order that required a claims examiner to answer certain questions on discovery.

The questions related to whether health professionals who assessed the plaintiffs under s. 42 of the Statutory Accident Benefits Schedule had requested certain records.

The appeal judge had found that these professionals were 'assessors' rather than 'experts' under rule 31.06(3), and thus the prohibition against cross-examining experts on discovery did not apply.

The Divisional Court granted leave to appeal, finding that the issue of whether rule 31.06(3) applies to s. 42 assessors is open to serious debate and raises a new question of principle.

The City of Toronto sought leave to appeal a decision dismissing its motion to quash a summons to examine a city councillor.

The underlying applications challenged a municipal by-law removing a licensing exemption for airport taxis, alleging bad faith.

The City argued that the intention of a legislative body cannot be established through the examination of a single councillor.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision that the councillor's statements had an institutional quality that might reflect the intention of City Council.

The plaintiff moved for an extension of time to file a notice of appeal from an interlocutory order denying production of a family counsellor's notes.

Although the plaintiff's former solicitor failed to file the notice of appeal within the prescribed time, resulting in an eight-year delay, the court found that the plaintiff maintained her intention to appeal.

The court concluded that the presumption of prejudice due to the delay was rebutted and that the justice of the case required granting the extension, as the appeal had merit and the evidence sought was important to the plaintiff's claim.

The landlords appealed a decision of the Landlord and Tenant Board dismissing their application to evict a tenant for the landlord's own use.

Although the Board found the application was made in good faith, it refused the eviction under s. 83(1) of the Residential Tenancies Act, 2006, finding that eviction would be more unfair to the vulnerable tenant than denying the landlord's application.

The Divisional Court applied a reasonableness standard of review and held that the Board did not err in principle by weighing the overall circumstances and unfairness to both parties.

The appeal was dismissed.

The appellants appealed an interlocutory decision of the Ontario Municipal Board denying their request to consolidate and hold a single joint hearing regarding a proposed development on the Oak Ridges Moraine.

On appeal, the respondent raised a new jurisdictional argument for the first time, asserting that certain regulations exempted the potential water hearings from consolidation.

The Divisional Court remitted the matter to a new panel of the OMB to consider the jurisdictional question with the benefit of a full factual context, and adjourned the appeal sine die.

The plaintiffs moved for leave to appeal and for a stay of an order refusing to grant an adjournment of the trial.

The court dismissed the motion, finding that the decision to refuse an adjournment is discretionary and entitled to high deference, particularly on the Commercial List.

The plaintiffs failed to satisfy the test under Rule 62.02(4) for leave to appeal an interlocutory order, as the issue was not of broad public importance and there was no basis to doubt the correctness of the order.

The plaintiff sought leave to appeal an order that reversed a master's decision granting leave to deliver a supplementary affidavit under Rule 39.02(2).

The motions judge had held that the affidavit, based on information and belief, was inadmissible and that a reasonable explanation for delay was required.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's ruling on the admissibility of hearsay evidence under Rule 39.01(4) and noting conflicting decisions on whether a reasonable explanation for delay is a strict prerequisite for granting leave.

The moving party sought an extension of time to perfect an appeal.

The court applied the test from Duca Community Credit Union Ltd. v. Giovannoli, finding that there was a firm intention to appeal immediately, no uncompensable prejudice to the respondent, the appeal was not frivolous, and the delay was not long.

The motion was granted, with costs awarded to the respondent due to the moving party's fault in necessitating the motion.

The applicant sought judicial review of an Ontario Labour Relations Board decision denying its request to reconsider a union certification order.

The applicant argued it was denied procedural fairness because the Board did not request further evidence before denying the reconsideration.

The Divisional Court dismissed the application, finding the Board fully considered the request and the applicant failed to provide reasons for not responding to the initial certification application or evidentiary support for its claims.

The Board's decision was reasonable and there was no denial of procedural fairness.

The appellant appealed a Small Claims Court judgment awarding the respondent $2,922 for painting and plastering work performed at the appellant's apartment buildings.

The appellant argued the work was unauthorized and there was no evidence it was completed.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual conclusion that the work was done.

The court upheld the trial judge's decision to award compensation on a quantum meruit basis, noting it would be inappropriate for the appellant to benefit from the work without paying for it.

The defendants sought leave to appeal an order dismissing their motion for partial summary judgment.

The defendants had argued that the plaintiffs' claim for pecuniary loss arising from a motor vehicle accident was statute-barred, relying on the assertion that separate limitation periods apply to pecuniary and non-pecuniary damages.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's decision that the limitation issue should be resolved on a full factual record at trial.

The tenant appealed a review decision of the Landlord and Tenant Board that denied her request to review an eviction order for rent arrears.

The landlord brought a motion to quash the appeal on the basis that it did not raise any question of law.

The Divisional Court granted the motion to quash, finding it plain and obvious that the appeal could not succeed because the tenant did not allege any error on the merits of the original order, but merely sought an opportunity to repay the arrears over time.

The appellant, a property owner, appealed a summary judgment order requiring it to pay the respondent contractor $1,199,122.50 for the unpaid balance of a construction contract.

The motions judge had found that a prior settlement agreement constituted an unequivocal admission of liability, precluding the appellant from raising a defence of equitable set-off for construction deficiencies.

The Divisional Court allowed the appeal, holding that the settlement agreement expressly permitted the appellant to file a statement of defence without prejudice in the event of default.

As the elements of equitable set-off were present, there was a genuine issue for trial, and the summary judgment was set aside.

The corporate applicant sought a stay of a 14-day liquor licence suspension imposed by the Alcohol and Gaming Commission pending its appeal.

The respondent conceded irreparable harm and balance of convenience but argued the appeal did not raise a serious issue as it only disputed findings of fact.

The court found the appeal was not frivolous or vexatious, noting the applicant intended to introduce fresh evidence and argue the Board failed to consider relevant evidence.

The stay was granted.

The landlord brought a motion to quash the tenant's appeal of two Landlord and Tenant Board orders (an Arrears Order and a Maintenance Order) and to lift the stay of eviction.

The landlord argued the appeal did not raise a question of law and was out of time.

The court found that while the grounds of appeal primarily related to findings of fact, the allegation that the Board failed to consider relevant evidence could amount to an error of law, so the appeal of the Maintenance Order was not plainly devoid of merit.

However, as the grounds of appeal did not challenge the amount of rent arrears, the court lifted the stay in respect of the Arrears Order and ordered the tenant to pay the arrears and ongoing rent into court or to the landlord, failing which the appeal would be dismissed.

Following a costs endorsement, the applicant sought costs for preparing his costs submissions, arguing that his offers to settle the quantum of costs exceeded the costs ultimately awarded to the respondents.

The applicant relied on Rule 49.02(2) of the Rules of Civil Procedure.

The court dismissed the request, holding that while Rule 49 applies to motions, it does not apply to offers to settle the quantum of costs of a motion.

No costs were awarded to the applicant.

The applicant physician sought judicial review of an interim order made by the College of Physicians and Surgeons of Ontario restricting her cosmetic surgery practice pending a disciplinary hearing.

The order was issued after investigations into patient complaints, including one patient death following a liposuction procedure.

The Divisional Court dismissed the application, finding that the College's decision was reasonable, supported by ample evidence of risk to patient safety, and did not demonstrate a reasonable apprehension of bias.