ODC 2010

The applicant appealed a Law Society Hearing Panel order suspending her licence for two and a half months.

She sought a permanent stay of proceedings, arguing her language rights were violated because the Law Society failed to form a francophone Appeal Panel in a timely manner.

The Divisional Court found that while the Law Society failed to demonstrate it took all necessary steps to fulfill its language rights duties, the applicant unilaterally began serving her suspension and did not show that allowing the appeal to proceed would be contrary to the interests of justice.

The application for a permanent stay was dismissed, but a temporary stay was continued until the appeal could be heard.

The moving party, Mr. Elgner, sought leave to appeal an interim spousal support order made under the Divorce Act.

He argued that the Divorce Act provided an appeal as of right, rendering the provincial requirement for leave inoperative under the doctrine of paramountcy.

The Divisional Court rejected this argument, finding that s. 21(6) of the Divorce Act incorporates ordinary provincial appellate procedures, meaning leave is required.

Applying the test for leave under Rule 62.02(4), the court found no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, which appropriately considered the high income of the payor and the needs of the recipient.

The motion for leave to appeal was dismissed.

The applicant, a former Justice of the Peace, applied for judicial review of a Commissioner's report and an Order in Council removing him from office for judicial misconduct.

The misconduct involved inappropriate in-court treatment of an unrepresented litigant and out-of-court attempts to improperly influence an investigation into his conduct.

The Divisional Court found the Commissioner's recommendation for removal was reasonable given the severity of the misconduct and the need to restore public confidence in the administration of justice.

The application was dismissed, and fresh evidence of the applicant's improved health and character did not alter the outcome.

Following an appeal where the appellants failed to file written submissions on costs, the Divisional Court awarded costs to the successful respondents.

The court awarded $30,000 to Woods Parisien, $20,000 to the Ville de Hawkesbury, and $20,000 to Menzies, payable by the appellants within 30 days.

The applicant sought judicial review of an Ontario Labour Relations Board decision declaring the applicant and Metro Waste Paper Recovery Inc. to be related employers under s. 1(4) of the Labour Relations Act, 1995.

The applicant argued the Board erred by applying s. 1(4) without first determining the 'true' employer and by exercising its discretion without identifying labour relations mischief.

The Divisional Court dismissed the application, finding the Board's decision was reasonable, fact-driven, and within its specialized expertise.

The Board properly identified that a single employer declaration would undermine collective bargaining rights and create an unviable bargaining structure.

The appellants appealed decisions of the Ontario Securities Commission finding that they breached securities laws and acted contrary to the public interest.

The Commission found that the appellant Rowan failed to file insider reports, traded during blackout periods, and failed to disclose his control over certain trust accounts.

The Commission also found that the other appellants failed to adequately supervise Rowan.

The Divisional Court dismissed the appeal, finding no error in the Commission's interpretation of 'control or direction' under the Securities Act, its public interest findings, or its imposition of administrative monetary penalties.

The applicant sought costs on a substantial indemnity basis following a partially successful application for judicial review regarding the municipal reimbursement of legal expenses for city councillors.

The Divisional Court awarded the applicant partial indemnity costs of $15,000 payable by the city, noting the lack of complexity and partial success.

The court declined to award costs against the individual councillors, and ordered the applicant to pay $5,000 in costs to one councillor who successfully opposed the relief sought against him personally.

The appellant appealed a decision of the Criminal Injuries Compensation Board dismissing her claim for compensation for mental shock suffered after her home was destroyed by arson.

The Divisional Court allowed the appeal, finding that the Board erred in law by treating the appellant as a secondary victim and applying the wrong criteria to deny her claim.

The Court held that the appellant was a primary victim and remitted the matter for a new hearing before a differently constituted Board.

The applicant association sought interim declaratory and injunctive relief to prevent the respondent regulatory college from enacting a proposed by-law for a compulsory insurance program.

The court dismissed the motion as premature, holding that administrative proceedings should not be fragmented and the matter should run its course before the college prior to any judicial review.

No costs were awarded due to the college's procedural missteps.

The moving parties brought a motion to vary or set aside a decision of Swinton J., which had dismissed their motion to extend the time to perfect an appeal.

Swinton J. had dismissed the motion on the basis of res judicata, as Jennings J. had previously dismissed a motion seeking the same relief.

The Divisional Court agreed with Swinton J. that she was bound by the decision of Jennings J., and that the proper recourse was to appeal or move to vary the decision of Jennings J., rather than bringing another motion before a different judge.

The motion was dismissed with costs fixed at $10,000.

The appellant appealed a decision of the Criminal Injuries Compensation Board terminating his payments.

After the appeal was set down, the Board reviewed its order and reinstated the payments retroactively, rendering the appeal moot except for costs.

The Divisional Court dismissed the appeal as moot but awarded the appellant $4,000 in costs, noting the appeal had been necessary.

The City of Ottawa sought judicial review of an Information and Privacy Commissioner decision ordering the processing of a freedom of information request for the personal emails of a municipal employee.

The employee had used his workplace email address for volunteer work unrelated to his employment.

The Divisional Court held that the emails were not within the 'custody or control' of the City under the Municipal Freedom of Information and Protection of Privacy Act.

The Court applied a purposive approach, finding that the legislation was intended to enhance democratic accountability, not to capture the private communications of employees merely because they were stored on a government server.

The application for judicial review was granted and the IPC decision was set aside.

The appellants appealed the dismissal of their Small Claims Court action against a hospital.

The appellants had sued the hospital for failing to provide a reasonable explanation for the death of their family member, claiming emotional harm.

The Divisional Court upheld the dismissal, finding the action was an abuse of process because the claims could have been raised in a prior, time-barred Superior Court action.

The Court also held the action was statute-barred, rejecting the argument that the hospital's ongoing failure to provide information constituted a continuing contravention that extended the limitation period.

The applicant police officer sought a stay of his disciplinary proceedings pending an application for judicial review.

The judicial review application alleged a reasonable apprehension of bias against the adjudicator, who had previously presided over other hearings involving the applicant.

The Divisional Court dismissed the motion for a stay, finding that while there was a serious issue to be determined, the applicant failed to establish sufficient irreparable harm and the balance of convenience favoured the public interest in proceeding with the hearings without further delay.

The Working Facilities Coalition and Laura Miller, on behalf of the Ontario Liberal Party, brought a motion to intervene in the application between the PC Ontario Fund and the Chief Electoral Officer.

The court granted the intervention and issued an order based on a revised draft.

The court denied a request for cross-examination on an affidavit filed in support of the motion to intervene, applied the usual costs provisions for interveners, and refused to limit the intervening party's appeal rights.

The applicant, a former registered practical nurse, sought judicial review of a decision by the Workplace Safety and Insurance Appeals Tribunal denying her benefits for interstitial lung disease.

She claimed the illness was caused by workplace exposure to viruses.

The Tribunal, relying on an independent medical assessor, found it probable that the disease was idiopathic and only speculative that it was caused by workplace viruses.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the Tribunal's reliance on the medical assessor was reasonable and did not constitute an abdication of its decision-making power.

The appellants appealed an order dismissing their action for failing to comply with a consent order to post $200,000 in security for costs.

The appellants sought an adjournment of the appeal, alleging the respondents' counsel was in a conflict of interest.

The court denied the adjournment, noting the delay and the discrete legal issue on appeal.

On the merits, the court upheld the Master's finding that under Form 56A of the Rules of Civil Procedure, an order for security for costs requires payment in cash unless the order specifies another form of security.

The appellants' attempt to file a late, foreign letter of credit covering only one plaintiff was insufficient.

The appeal was dismissed.

The moving party brought a motion before a single judge of the Divisional Court to dismiss the responding party's judicial review application on the ground of delay.

The motions judge dismissed the motion, holding that while a single judge has jurisdiction to dismiss for delay in clear cases, the equitable and discretionary nature of judicial review generally requires that the issue of delay be determined by the full panel hearing the application on its merits.

The dismissal was without prejudice to the moving party's right to raise the delay argument before the panel.

The appellants, having been successful in their appeal which struck the respondent's counterclaim and third-party claim, sought their costs on a partial indemnity basis.

The court fixed the costs for both appellants but declined to include any fees or disbursements related to a voluntary mediation.

The court held that voluntary mediation is not a step authorized by the Rules of Civil Procedure, and as a matter of policy, the costs of voluntary mediation should be borne equally by the parties to encourage settlement efforts without fear of increased costs if unsuccessful.

The applicant employee sought a stay of a first contract arbitration ordered by the Ontario Labour Relations Board, pending a judicial review of the Board's and Minister of Labour's decisions.

The applicant argued that the Board and Minister breached the employees' rights to natural justice and procedural fairness by not providing notice or an opportunity to participate.

The Divisional Court dismissed the motion for a stay, finding that the applicant failed to establish irreparable harm, as the mere imposition of a collective agreement pending the judicial review would not exacerbate the alleged harm.