ODC 2010

The appellants appealed six Small Claims Court decisions assessing damages on default judgments for payday loans.

The Small Claims Court judge awarded partial judgment in each case but provided no reasons for reducing the amounts claimed.

The Divisional Court allowed the appeals, holding that the complete absence of reasons precluded meaningful appellate review.

The matters were remitted to a different judge for a new assessment of damages, as the appellate court lacked sufficient information to determine the appropriate amounts.

The applicants sought judicial review of a decision by a Director's Delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's denial of statutory accident benefits.

The applicants argued breaches of procedural fairness, incorrect application of the burden of proof, improper judicial notice, and failure to accept uncontradicted medical evidence.

The Divisional Court dismissed the application, finding the Delegate's decision reasonable in all respects.

The court affirmed that the burden of proof rests on the insured to establish entitlement to benefits and does not shift to the insurer.

The appellant payday lender appealed a Small Claims Court judgment assessing damages after the respondent defaulted on a $450 loan.

The trial judge found the annualized interest rate of 1,303% violated the Criminal Code, rejected a $500 claim for liquidated damages as a penalty, and reduced the 59% post-default interest rate to 18% under the Unconscionable Transactions Relief Act.

The Divisional Court dismissed the appeal, confirming the payday loan exemption to the Criminal Code was not yet in force at the time of the agreement, the lender failed to prove the $500 fee was a genuine pre-estimate of loss, and the transaction was harsh and unconscionable.

The applicant sought judicial review of a Superior Court judge's decision made under the Building Code Act.

The Divisional Court quashed the application, holding that certiorari is not available to challenge a decision of a Superior Court judge absent exceptional circumstances, which were not present.

The Court also declined to transfer the proceeding to the Court of Appeal under s. 110 of the Courts of Justice Act, noting that an application for judicial review is distinct from an appeal and the time to appeal had expired.

The appellant appealed a Small Claims Court judgment awarding it $536.55 plus costs in a dispute over returned fabric.

The appellant alleged the trial judge made seven errors, including failing to address fraudulent misrepresentation, miscalculating the amount of fabric returned, and denying interpreter fees.

The Divisional Court dismissed the appeal, finding no errors of law or palpable and overriding errors of fact, noting the trial judge was in the best position to assess credibility and the evidence.

The appellant appealed the dismissal of his claim against his financial institution, arguing the bank had a duty to determine whether funds in his account were exempt from garnishment before forwarding them to the Sheriff.

The Divisional Court dismissed the appeal, finding no authority for such an obligation.

The court also found no palpable and overriding error in the trial judge's factual findings regarding the appellant's delay in taking action, and concluded there was no denial of the right to present evidence or cross-examine.

The appellant, who was severely assaulted in his home, appealed the Criminal Injuries Compensation Board's decision denying him compensation.

The Board had found that the appellant's involvement in drug dealing inherently risked violence and thus barred his claim.

The Divisional Court allowed the appeal, holding that the Board erred in law by failing to properly apply the proportionality principle under s. 17(1) of the Compensation for Victims of Crime Act.

The Board was required to weigh the severity of the injuries against the contributory conduct and consider a reduced award rather than an automatic complete denial.

The City of Waterloo applied for judicial review of two orders made by delegates of the Information and Privacy Commissioner, which required the City to disclose the total dollar amount of its legal bills.

The City argued the adjudicators exceeded their jurisdiction by failing to find the records were protected by solicitor-client privilege under s. 12 of the Municipal Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the applications, finding the adjudicators correctly decided the cases on their facts rather than on inapplicable hypothetical scenarios.

The Crown moved to strike portions of two affidavits filed by the Ontario Propane Association in support of its judicial review application challenging O. Reg. 440/08.

The Crown argued the impugned sections contained improper legal argument and irrelevant exhibits.

The motion judge dismissed the motion, applying the general principle that issues of admissibility and relevance of affidavit evidence should be determined by the panel hearing the judicial review application, rather than on an interlocutory basis.

The applicant, a law student, was expelled from the University of Western Ontario following a series of disturbing behaviours and a threatening Facebook post directed at a fellow student.

He sought judicial review of the University Discipline Appeal Committee's decision upholding his expulsion.

The Divisional Court dismissed the application, finding it was barred by unexplained delay.

On the merits, the court held that the applicant's Facebook post was not protected by the Charter right to free speech, the university's procedures were fair, and the Code of Student Conduct reasonably applied to off-campus conduct that adversely affected the university environment.

The applicant school board sought judicial review of an arbitrator's decision interpreting a regulation under the Education Act regarding teacher performance appraisals.

The arbitrator found that the regulation did not provide principals with unfettered discretion to conduct extra appraisals, and that being new to a school or division did not constitute 'circumstances' relating to performance under s.6(1).

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the arbitrator's interpretation justifiable, transparent, and intelligible.

The appellants appealed a motion judge's order requiring the plaintiff to undergo three defence medical assessments by a psychiatrist, a neurologist, and a neuropsychologist.

The appellants did not object to the neuropsychologist but challenged the other two.

The Divisional Court dismissed the appeal regarding the neurologist, finding the motion judge reasonably relied on the neuropsychologist's evidence that a neurological exam was necessary to determine organic brain injury.

However, the court allowed the appeal regarding the psychiatrist, as there was no evidence explaining why a psychiatric assessment was warranted in addition to the other examinations.

The appellant mother sued her son and daughter-in-law for repayment of a $52,000 loan, which she claimed was payable upon her turning 65 or retiring.

The respondents argued the money was a gift or, alternatively, a demand loan that was statute-barred.

The motion judge granted summary judgment dismissing the action.

On appeal, the Divisional Court found the motion judge made palpable and overriding errors by weighing evidence, evaluating credibility, and drawing adverse inferences without considering whether a trial was necessary in the interests of justice.

The appeal was allowed and the summary judgment set aside.

The parents appealed a summary judgment order making their child a Crown ward without access for the purpose of adoption.

The child had been in care for her entire life (23 months) and the statutory time limit for temporary wardship had lapsed.

The Divisional Court upheld the motion judge's finding that there was no genuine issue for trial regarding the child's best interests, noting the father's ongoing substance abuse and criminal issues, and the mother's lack of insight into the risk he posed.

The appeal was dismissed.

The landlord brought a motion to quash the tenant's appeal from a decision of the Landlord and Tenant Board.

The Board had permitted the landlord to withdraw its application for rent arrears and had interpreted a previous consent order regarding the tenant's relocation within the building.

The Divisional Court found that all grounds of appeal raised by the tenant were manifestly devoid of merit.

The court held that the Board properly exercised its discretion to allow the withdrawal of the application and correctly determined that the consent order did not violate the Residential Tenancies Act.

The motion to quash the appeal was granted.

The landlord appealed a decision of the Landlord and Tenant Board, arguing that the Board breached procedural fairness by proceeding with the hearing in her absence and allowing a witness to be present while the tenant testified.

The Divisional Court dismissed the appeal, finding that the landlord had notice, did not request an adjournment, and explicitly asked the Board to consider her unsworn written materials in her absence.

The Court held that the Board made no error in proceeding and that allowing the witness to be present was a matter of discretion.

The defendant appealed an order dismissing its motion to declare the plaintiff's construction liens expired.

The motion judge had ruled that the plaintiff's Reply and the defendant's Amended Statement of Defence were nullities, and that pleadings were closed, allowing the plaintiff to set the action down for trial within the statutory deadline.

The Divisional Court dismissed the appeal for lack of jurisdiction, finding that the motion judge's orders did not finally determine any substantive rights and were therefore interlocutory.

Under section 71(3)(b) of the Construction Lien Act, no appeal lies from an interlocutory order.

The defendants appealed an interlocutory order requiring them to post $100,000 in security for costs or have their Statement of Defence and Counterclaim struck.

The primary issue was whether Rule 56.01(1)(c) conflicts with section 12 of the Libel and Slander Act.

The Divisional Court found no conflict, as the rule and the statute rely on different criteria.

However, the court varied the order, holding that a party should not be required to post security merely to defend itself.

The order was amended so that only the defendants' counterclaim would be struck if security was not posted.

The appellant appealed the dismissal of his action against the police and his former wife's lawyer for negligent investigation and conspiracy to bring false criminal charges.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact and credibility.

The court also upheld the trial judge's refusal to draw an adverse inference for the failure to call the former wife as a witness.

Substantial indemnity costs were awarded against the appellant due to his persistence in making serious, unfounded allegations against a lawyer.

The plaintiff commenced an action against a paving company for breach of contract regarding defective pavement.

Years later, the plaintiff discovered a concealed engineering report revealing that the original design specifications provided by an engineering firm were deficient.

The plaintiff successfully moved to add the engineering firm as a defendant.

The engineering firm appealed, arguing the claim was statute-barred.

The Divisional Court dismissed the appeal, holding that the discoverability rule applies to the 12-month limitation period under s. 46(1) of the former Professional Engineers Act, meaning the limitation period did not begin until the plaintiff discovered the report.