ODC 2010

The appellant moved for substantial indemnity costs and an order prohibiting the respondent from filing responding material after the respondent's cheques for costs, payable as a condition of an adjournment, were returned for insufficient funds.

The respondent's counsel had promptly replaced the cheques with a firm trust cheque once notified.

The court awarded $200 in costs for the inconvenience of the dishonoured cheques but dismissed the request to prohibit responding materials as premature.

The court noted the escalation of costs was due to a lack of professional courtesy and communication between counsel.

The appellants appealed a summary judgment decision granting the respondent bank recovery of a credit card debt.

The central issue was whether the action was barred by the six-year limitation period.

The Divisional Court upheld the motions judge's finding that the limitation period began to run when the bank terminated the credit card agreement and the entire debt became immediately payable, rather than on the date of the initial missed minimum payment.

The appeal was dismissed.

The appellant appealed a Small Claims Court decision on the grounds that the trial judge erred by refusing an adjournment, refusing to admit his version of a contract, and refusing to admit hearsay witness statements.

The Divisional Court found that the trial judge properly exercised his discretion in denying the adjournment due to a lack of medical evidence, properly excluded the illegible and altered contract documents, and reasonably exercised his discretion under section 27(1) of the Courts of Justice Act to exclude the hearsay statements.

The appeal was dismissed.

The appellant tenant appealed a decision of the Landlord and Tenant Board terminating his tenancy for non-payment of rent, brought by the respondent mortgagee in possession.

The tenant argued the Board erred in its factual findings regarding notice and rent payment, and that the Board lacked jurisdiction because the premises were exempt under s. 5(j) of the Residential Tenancies Act.

The Divisional Court dismissed the appeal, finding no error of law in the Board's factual findings and noting that the jurisdictional argument was not raised before the Board.

Costs of $5,000 were awarded to the respondent.

The appellant sought a stay of a Licence Appeal Tribunal decision upholding a 14-day suspension of its commercial motor vehicle operator's registration, pending appeal.

Applying the RJR-MacDonald test, the court found there was a serious issue to be tried regarding whether the Tribunal improperly focused on past events rather than current safety.

The court also found the appellant would suffer irreparable harm to its business contracts and reputation, and the balance of convenience favoured granting the stay.

The motion for a stay was granted.

The tenant brought a motion to set aside the registrar's dismissal of his appeal, extend the time to perfect the appeal, and for an order allowing re-entry into the premises.

The underlying appeal was from a Landlord and Tenant Board decision.

The Divisional Court dismissed the motion, finding that the appeal was an attempt to relitigate factual findings rather than raising a question of law, and noting the tenant's failure to take any steps to perfect the appeal for over a year.

The balance of convenience favoured the landlord.

The moving party sought to set aside an Order to Continue and an assignment of a Small Claims Court judgment to the responding party, a disbarred lawyer.

The moving party argued the assignment was champertous and a sham designed to allow the responding party to act as an agent in the Divisional Court appeal.

The court dismissed the motion, finding that the assignment of a judgment debt is not champerty, as it does not stir up litigation.

The court also found the assignment was supported by valid consideration and was not an abuse of process.

The appellants appealed the dismissal of their summary judgment motion regarding property damage allegedly caused by the negligent construction of neighbouring homes.

They argued the motions judge failed to apply the new, more flexible Rule 20 of the Rules of Civil Procedure and provided inadequate reasons.

The Divisional Court agreed the reasons were inadequate but upheld the dismissal, finding significant conflicting evidence regarding personal liability, independent contractor liability, and damages that required a trial.

The appellant appealed an order of a single judge of the Divisional Court that quashed her appeal from a Small Claims Court decision and ordered her to pay security for costs.

The underlying dispute involved losses sustained on an online poker website operated by the respondent, which was governed by an end user licence agreement containing an exclusive forum selection clause for the Isle of Man.

The Divisional Court panel found no palpable and overriding error in the single judge's conclusions that the appeal was manifestly devoid of merit and that security for costs was warranted.

The appeal was dismissed.

The appellant landlord appealed a Small Claims Court judgment that dismissed its claim for loss of rent against a former commercial tenant.

The landlord argued the trial judge misapprehended the evidence regarding a rent-free period granted to a new tenant while repairs were completed.

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

The court held there was sufficient evidence to support the trial judge's conclusion that the repairs, which were the landlord's responsibility, were completed concurrently with the new tenant's leasehold improvements.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario finding that it had permitted drunkenness on its premises contrary to s. 45(1) of Regulation 719 under the Liquor Licence Act.

The Divisional Court allowed the appeal, finding that the Board erred in law by concluding the appellant permitted drunkenness without any evidence of how long the patron had been in an intoxicated state, which was necessary to determine if the appellant failed to remove the patron within a reasonable period of time.

The appellant landlord appealed an order of the Landlord and Tenant Board finding he gave a bad faith notice of termination for landlord's own use and ordering him to pay compensation to the respondent tenants.

The Divisional Court allowed the appeal, finding the Board Member denied procedural fairness by refusing to permit the appellant to call witnesses regarding his reasons for termination and by allowing the respondents to file evidence after the hearing concluded.

The matter was returned to the Board for a new hearing.

The appellant appealed a costs order of $345,733.53 awarded against it following a partially abandoned summary judgment motion in a wrongful dismissal action.

The Divisional Court found that the motions judge erred in principle by failing to step back and assess whether the costs claimed were fair and reasonable, effectively rubber-stamping the respondent's costs outlines.

The Court allowed the appeal, finding the hours claimed excessive and duplicative, and reduced the costs award for the summary judgment motion to $145,000.

The Children's Aid Society of Ottawa sought leave to appeal a temporary order that granted care and custody of five children to the respondent mother, subject to conditions granting the Society access to health care and education information.

The Society argued the order improperly divided custody.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the order, as the conditions were reasonable and authorized by the Child and Family Services Act.

Furthermore, the court held the proposed appeal did not involve matters of public importance.

The appellant appealed a decision of the Criminal Injuries Compensation Board denying her claim for compensation as a victim of a violent crime.

The appellant sought compensation for nervous shock after learning that her daughter had been sexually assaulted by her husband years earlier.

The Divisional Court dismissed the appeal, finding that the Board correctly applied the common law test for nervous shock, which requires the claimant to have seen or heard the event or its immediate aftermath, rather than simply being informed of it later.

The defendant moved to extend the time to appeal a Small Claims Court judgment after a nine-month delay.

The court granted the extension, finding that the defendant's depression impaired his ability to deal with the appeal, there was no evidence of prejudice to the plaintiff who did not appear, and there was an arguable question of law involving the Fire Protection and Prevention Act.

The appellant tenant appealed a Landlord and Tenant Board decision dismissing her application for the return of a rent deposit.

After signing a rental application and paying a deposit, the tenant unilaterally decided not to sign the tenancy agreement or take possession of the unit.

The Divisional Court held that s. 107(1) of the Residential Tenancies Act, which requires a landlord to repay a rent deposit if vacant possession is 'not given', applies only when the landlord refuses or is unable to provide the premises.

Because the tenant's own repudiation prevented her from taking possession, she was not entitled to the return of the deposit.

The appeal was dismissed.

The applicant sought an interlocutory injunction to restrain the LCBO from terminating its temporary authorization to operate an agency store and from fulfilling a new contract with a competitor, Daisy Mart, pending a judicial review of the procurement process.

The court dismissed the motion, finding that while there was a serious issue to be tried regarding fairness in the procurement process, the applicant failed to establish irreparable harm, as any financial loss was compensable in damages.

Furthermore, the balance of convenience favoured the competitor, who had already undertaken substantial renovations and incurred expenses in reliance on the contract.

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy for rent arrears.

The tenants argued the Board lacked jurisdiction because their unit was subject to the Social Housing Reform Act, but conceded at the hearing that the Board had jurisdiction under the Residential Tenancies Act.

They also conceded the Board could not adjudicate their claim that the rent geared to income was excessive.

The court found no denial of natural justice and dismissed the appeal, save for a minor variation in the arrears amount conceded by the landlord.

The moving party (the College) brought a motion to quash an appeal by the responding parties (the members) from an interlocutory order of the Discipline Committee.

The Discipline Committee had dismissed the members' motion for the production of additional third-party records.

The Divisional Court granted the motion to quash, finding that the statutory right of appeal only applies to final decisions, not interlocutory ones.

The court also declined the members' request to convert the appeal into an application for judicial review, noting that such an application would be premature and that the administrative process should be permitted to unfold.