ODC 2010

The appellant appealed a costs order of the Discipline Committee and brought a motion to admit fresh evidence.

The Divisional Court dismissed the motion, finding the appellant was attempting an impermissible collateral attack on the underlying merits decision, which had already been upheld on appeal.

Furthermore, the proposed fresh evidence did not meet the test for admission as it could not reasonably be expected to have affected the result.

The appellants appealed a Small Claims Court decision awarding the respondent damages for misrepresentation regarding a gas fireplace in a purchased home.

The Divisional Court found that the trial judge made a palpable and overriding error by ignoring uncontradicted evidence that the respondent's real estate agent knew about the fireplace issue before the offer to purchase was signed.

As a matter of law, the agent's knowledge is imputed to the purchaser.

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

Air Canada sought judicial review of a labour arbitration award that directed it to offer 90 denied Voluntary Separation Program (VSP) applications to eligible employees.

Air Canada argued the arbitrator exceeded his jurisdiction by modifying the collective agreement and interfering with management rights.

The Divisional Court applied the reasonableness standard of review, finding that the arbitrator was properly interpreting the quantitative language of the Memorandum of Understanding, which required the maximum number of VSPs to be granted.

The application for judicial review was dismissed.

Following an appeal regarding an equalization award where success was divided, the respondents sought costs of the appeal.

The Divisional Court noted that the appellants were successful on two of the four issues, reducing their required payment by 25%.

Given the divided success and the significant time spent on a tax issue where the appellants were unsuccessful, the court exercised its discretion to make no award of costs.

The applicant police officers sought judicial review of two interlocutory decisions of the Human Rights Tribunal of Ontario ordering the production of records concerning prior complaints against them.

The Divisional Court quashed the application for prematurity, finding no exceptional or extraordinary circumstances to justify fragmenting the administrative proceedings before the Tribunal.

The appellant, a forensic patient diagnosed with schizophrenia, appealed a decision of the Consent and Capacity Board finding him incapable of consenting to treatment with anti-psychotic medication.

The appellant argued the Board erred in law by conflating the two-part capacity test and that its decision was unreasonable.

The Divisional Court dismissed the appeal, finding the Board correctly applied the two-part test from the Health Care Consent Act and reasonably concluded on the evidence that the appellant's delusions prevented him from understanding treatment information and appreciating the consequences of his decision.

The applicants, three chartered accountants, sought judicial review of decisions by the Discipline Committee and Appeal Committee of the Institute of Chartered Accountants of Ontario finding them guilty of professional misconduct in relation to the 1997 audit of Livent Inc. The Divisional Court granted the applications in part.

The Court quashed the convictions on charges 1(i) and 1(iii) due to a breach of procedural fairness, as the applicants were convicted based on their treatment of a 'Put' agreement which was not part of the charges or the case they had to meet.

The Court also quashed the convictions on charges 1(iv) and 2(viii) as unreasonable.

However, the Court upheld the convictions on charges 2(ii), (iii), (iv), and (v), finding it was reasonable for the committees to conclude the auditors failed to exercise appropriate professional scepticism.

Finally, the Court quashed the costs award, holding that the Discipline Committee lacked jurisdiction to order costs because its by-law conflicted with the requirements of the Statutory Powers Procedure Act.

The applicant, an anesthesiologist, sought judicial review of an interim order made by the respondent's Inquiries, Complaints and Reports Committee that effectively shut down his practice following a patient's death.

The court found that the Committee's decision to issue the interim order was unreasonable because there was no evidence of probable harm to future patients, only speculation based on a single incident.

Furthermore, the court held that the Committee breached procedural fairness by relying on undisclosed materials and improperly considered evidence protected under the Evidence Act.

The application was allowed and the interim order was quashed.

The respondent, Anna Mauro, brought a motion for costs following an abandoned judicial review application and a previously dismissed stay motion.

The Divisional Court awarded the respondent $2,500 in costs for the stay motion, noting that while she was successful, the issues were not complicated and she had filed irrelevant material.

The court declined to award costs for the abandoned application, as the matter was moot and no steps were required by the respondent.

The appellant collection agency appealed a jury's assessment of $40,000 in general damages for slander.

The appellant's employee falsely represented himself as a lawyer to the respondent's employer, claiming a garnishment order had been issued against her.

The appellant argued the damages were patently excessive and should be reduced to $10,000.

The Divisional Court dismissed the appeal, finding that while the award was on the high side, it was not anomalous or wholly out of proportion, given the malicious nature of the call and the respondent's position handling cash at a bank.

The applicant employer successfully sought judicial review of an arbitrator's decision, resulting in the reinstatement of the grievor's employment termination.

The parties agreed the applicant was entitled to partial indemnity costs, leaving only the quantum to be determined.

The court assessed the claimed fees and disbursements, reducing the fees to $10,000 and disbursements to $2,535, noting the complexity of the proceeding and the reasonable expectations of the unsuccessful party under Rule 57.01(1).

The Minister of Transportation appealed an Ontario Municipal Board decision awarding Antrim Truck Centre Ltd. $393,000 for injurious affection resulting from the construction of Highway 417, which bypassed Antrim's property and substantially interfered with its access.

Antrim cross-appealed, seeking over $7.6 million for relocation and construction costs.

The Divisional Court dismissed both the appeal and the cross-appeal, finding that the OMB reasonably concluded the highway construction caused a substantial interference amounting to an actionable nuisance, and correctly held that the Expropriations Act does not permit recovery of relocation costs where no land is expropriated.

The appellants appealed a trial judgment granting the respondent real estate broker an oppression remedy under s. 248 of the Ontario Business Corporations Act.

The trial judge had found that a corporate reorganization by the appellants was designed to defeat the respondent's claim for real estate commissions.

The Divisional Court allowed the appeal, holding that the respondent was not a 'creditor' at the time of the reorganization because no commissions were yet payable under the listing agreement.

Furthermore, the reorganization did not constitute oppression as the successor entities had provided indemnification, ensuring the original corporation was not judgment-proof.

The action was dismissed.

The appellant appealed a decision of the Human Rights Tribunal regarding the quantum of general damages and lost wages awarded for gender discrimination.

The Divisional Court determined that its jurisdiction was by way of judicial review and the standard of review was patent unreasonableness.

The Court found the Tribunal's decision on remedy was reasonable and dismissed the appeal, awarding $1,000 in costs to the respondent casino.

The appellant police officer appealed a decision of the Ontario Civilian Commission on Police Services, which upheld a Hearing Officer's findings of misconduct for unnecessary use of force and neglect of duty.

The Divisional Court allowed the appeal in part, finding that the Hearing Officer erred by prematurely judging a witness's credibility, misapprehending evidence, and failing to provide adequate reasons for rejecting the appellant's evidence and accepting the evidence of the prosecution's key witness.

The misconduct finding for use of force was set aside and a new hearing ordered.

The neglect of duty finding for failing to make notebook entries was upheld, but the penalty was set aside and remitted.

The Medical Advisory Committee (MAC) and Dr. Khan both sought costs following the dismissal of Dr. Khan's motion to stay a hearing of the Executive Committee of the Board of Directors of the Hospital regarding the termination of his hospital privileges.

The court found that the MAC was largely successful on the motion, as the hearing was allowed to proceed with only a delay in the release of the decision.

The court awarded costs to the MAC in the amount of $9,500 on a partial indemnity basis, noting that the motion was not legally or factually complex.

The plaintiffs sued their insurer for terminating statutory accident benefits based on reports from health care professionals retained by the insurer under s. 42 of the Statutory Accident Benefits Schedule.

On discovery, the plaintiffs sought to ask questions that amounted to cross-examining these experts.

The motion judge held that the experts were not 'experts' within the meaning of Rule 31.06(3) of the Rules of Civil Procedure, and thus the prohibition against cross-examination did not apply.

The Divisional Court allowed the insurer's appeal, holding that the clear wording of Rule 31.06(3) covers experts engaged by a party for a purpose other than litigation, including s. 42 assessors.

The applicant, a child with autism, sought judicial review of a decision to discharge her from a regional Intensive Behaviour Intervention (IBI) program.

The program's clinical director determined after a 12-month assessment that the therapy was not resulting in cognitive and learning improvements.

The applicant argued the decision was unreasonable and the process lacked procedural fairness.

The Divisional Court dismissed the application, finding the clinical decision was reasonable and the applicant was afforded procedural fairness through evaluations, meetings, and an independent review mechanism.

The Toronto Police Association (TPA) brought an application for judicial review seeking an order of mandamus to compel the Ontario Civilian Commission on Police Services to conduct a public inquiry under s. 25 of the Police Services Act into various matters, including a dispute between officers at a gas pump.

The Commission had previously conducted a screening review and declined to hold a formal inquiry, but made several recommendations under s. 22(1)(e.2) of the Act.

The Divisional Court dismissed the application, finding that the Commission's decision not to investigate the TPA's complaints while recommending an investigation into a related human rights complaint was entirely reasonable and within its broad statutory discretion.

The Court also noted that mandamus was not available as a remedy on the facts of the case.

The appellants appealed a trial judge's finding that they owed the respondent commission under an oral contract for the sale of stone.

The appellants argued the trial judge ignored evidence that not all the stone had been sold, which was the triggering term for the commission.

The Divisional Court dismissed the appeal, finding no palpable and overriding error.

The trial judge's conclusion was supported by the respondent's evidence, which she found credible, and an admission by the appellants that commission was owed.