ODC 2010

The appellant tenant sued the landlord and its independent contractor for water damage caused by a leaking roof.

The Master granted summary judgment dismissing the claim against the contractor, finding that a waiver of subrogation clause in the lease protected the landlord and those for whom it was 'in law responsible'.

The Divisional Court dismissed the tenant's appeal, holding that the Master had jurisdiction to interpret the lease and correctly concluded that the landlord could not delegate its contractual duty to repair the roof, making it responsible in law for the contractor's work.

The appellant was successful on appeal, which resulted in an order for a new trial due to the trial judge's inadequate reasons.

The appellant sought costs for both the appeal and the first trial.

The Divisional Court awarded the appellant $15,000 in costs for the appeal, noting the issues were not complex.

However, because the need for a new trial was not the respondents' fault, the court ordered that the appeal costs not be payable until the completion of the second trial, and that the costs of the first trial be in the cause.

The moving parties sought leave to appeal an interlocutory order upholding a Master's refusal to strike an affidavit.

During cross-examination on the affidavit, the witness consulted with his lawyer, and opposing counsel subsequently claimed solicitor-client privilege over the communication.

The Master found no evidence of interference and dismissed the motion to strike.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of placing the onus on the examining party to prove interference when the communication was prima facie improper and shielded by privilege.

The court also found the issue of improper communication during cross-examination to be a matter of general public importance.

The appellant appealed a motions judge's decision terminating his membership and occupancy rights in a housing co-operative and ordering a writ of possession for arrears and persistent late payments.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness in the Board proceeding in his absence, as his failure to attend was deliberate.

The court also found no error in the motions judge ordering payment of a minimum admitted amount of arrears without determining the exact higher amount owed, and held it was not unfair to issue the writ of possession given the appellant's failure to pay any amount.

The respondent College sought costs on a substantial indemnity basis or personally against the applicant's counsel for alleging bad faith and misrepresentation.

The Divisional Court found that while the respondent's factum contained an inaccuracy, there was no intention to mislead.

The court declined to award substantial indemnity costs or costs against counsel personally, noting that while counsel overreacted, the conduct did not warrant such sanctions.

Costs were awarded to the respondent on a partial indemnity basis in the amount of $15,000 all inclusive.

The City of Toronto appealed a trial judge's decision regarding liability for a slip and fall in a municipal laneway.

The City argued the trial judge erred in assessing the standard of maintenance, failing to apply the strict notice period for sidewalks under the Municipal Act, and failing to find contributory negligence.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or application of the law, and upheld the trial judge's costs award.

The appellant appealed a trial decision finding a valid agreement to split settlement funds 50/50 with the respondents.

The Divisional Court dismissed the appeal, holding that the trial judge did not err in finding a valid agreement, implying a reasonable term for the split, or rejecting the argument that the agreement was unenforceable for illegality due to an undertaking given to the insurer.

Costs of $6,000 were awarded to the respondents.

The applicant, a physician, sought judicial review of the decision of the Registrar of the College of Physicians and Surgeons of Ontario to appoint investigators to investigate his practice.

The investigations arose from resolutions of the Quality Assurance Committee and a patient complaint.

The applicant refused to comply and raised constitutional and procedural fairness issues.

The Divisional Court dismissed the application for judicial review on the grounds of prematurity, holding that administrative proceedings should run their full course before judicial intervention, absent exceptional circumstances.

The moving parties (defendants) sought leave to appeal to the Divisional Court from an order dismissing their motion for summary judgment.

The underlying dispute involved the interpretation of an indemnity clause in an agreement of purchase and sale regarding environmental contamination discovered after closing.

The court found there was good reason to doubt the correctness of the motion judge's interpretation, satisfying the first branch of the test for leave to appeal under Rule 62.02(4)(b).

However, the court held that the interpretation of a specific agreement between specific parties did not raise issues of broad public importance.

As the second branch of the test was not met, the motion for leave to appeal was dismissed.

Sierra Club Canada brought a motion for an interlocutory injunction to halt demolition and construction activities for the Windsor-Essex Parkway, arguing the work would irreparably harm endangered species despite a permit issued under the Endangered Species Act.

The court dismissed the motion, finding no evidence of irreparable harm and that the balance of convenience favoured continuing the project with the permit's mitigation measures.

The respondent's cross-motion to dismiss the judicial review application for delay was adjourned to the panel hearing the application.

The appellant landlord appealed a decision of the Landlord and Tenant Board that found it lacked jurisdiction to proceed with an eviction application.

Prior to the appeal hearing, the landlord obtained an order requiring the tenants to pay rent, failing which a Writ of Possession would issue.

The tenants failed to pay and were evicted.

The Landlord and Tenant Board, as intervenor, brought a preliminary motion to dismiss the appeal as moot.

The Divisional Court agreed, finding that the execution of the Writ of Possession effectively terminated the tenancy, the dispute had disappeared, and there were no circumstances warranting the exercise of discretion to hear the moot appeal.

The moving party sought an interim injunction to halt the demolition of houses pending the hearing of an interlocutory injunction.

The court dismissed the motion, finding that the moving party failed to establish irreparable harm, noting that pre-screening of the properties had found no snakes.

The court also found that the balance of convenience favoured the responding party, as the demolition plans had been public for some time and the moving party could have sought relief earlier.

The applicant sought costs for an original motion before Justice Maranger and for a judicial review application before the Divisional Court.

The Law Society opposed the request, noting the applicant had mixed success as she did not obtain the permanent stay she sought.

The court agreed the applicant's success was mixed, as it merely maintained the interim stay pending an appeal before the Law Society Appeal Panel.

The court awarded the applicant $5,000 in costs for the motion before Justice Maranger, but declined to award costs for the judicial review.

The appellants appealed a Small Claims Court decision dismissing their claim against the respondent bank for $600.

The bank had exercised a right of off-set to recover funds for an outstanding credit card debt subject to a 1997 default judgment.

The Divisional Court upheld the trial judge's decision, agreeing with the adverse inference drawn from the failure of the key appellant to testify.

The court also upheld the costs award against the appellants' agent personally due to his unreasonable conduct during the trial.

The appellant appealed a Small Claims Court decision that dismissed its claim for unpaid invoices.

The trial judge found the appellant was entitled to the claimed amount but allowed an equivalent set-off due to the appellant's negligent misrepresentation regarding the seasonal sag of hydro wires, which caused the respondents to incur significant extra costs when moving a house.

The Divisional Court dismissed the appeal, holding that the informal pleading standards in Small Claims Court permitted the trial judge to apply set-off based on the facts presented, and that the finding of negligent misrepresentation was supported by the evidence.

The applicants sought an injunction to prevent the closure of the only public secondary school in Niagara-on-the-Lake, pending an application for judicial review of the school board's decision.

The court dismissed the motion primarily due to the applicants' two-year delay in bringing the proceeding.

Applying the RJR MacDonald test, the court found no strong prima facie case, as the board's administrative decision was procedurally fair and reasonable.

Furthermore, the applicants failed to establish irreparable harm, and the balance of convenience heavily favoured the board, which had already completed complex logistical arrangements to relocate students and staff.

The appellant, a bank employee, sought to certify a class action against the respondent bank for systemic unpaid overtime.

The motion judge dismissed the certification motion, finding no common issues that would advance the litigation and that the bank's overtime policy requiring pre-approval was lawful under the Canada Labour Code.

The motion judge also awarded $525,000 in costs to the respondent.

The Divisional Court dismissed the appeal, upholding the motion judge's findings that the claims required individual assessments and that the costs award was reasonable.

The applicant sought an extension of time and leave to appeal two case management orders made in a guardianship application that had been ongoing for 2.5 years.

The applicant argued the case management judge lacked inherent jurisdiction to case manage an estate matter.

The Divisional Court granted the extension of time but dismissed the motion for leave to appeal, finding that the court has inherent jurisdiction to control its own process and that the tests for leave to appeal under Rule 62.02(4) were not met.

The corporation sought an order approving a proposed arrangement to collapse its dual-class share structure by purchasing for cancellation all outstanding Class B shares for consideration comprising 9 million newly issued Class A shares and US$300 million in cash.

The application judge approved the arrangement.

The opposing shareholders appealed, arguing the application judge erred in finding the arrangement fair and reasonable.

The Divisional Court dismissed the appeal, holding that the application judge correctly applied the BCE test.

The corporation was not required to demonstrate with certainty that the benefits of the arrangement would offset the costs, but only a reasonable prospect of clearly identified benefits.

The affirmative vote of the Class A shareholders was important evidence supporting the fairness of the arrangement.

The defendant insurer sought leave to appeal a motion judge's refusal to strike the plaintiff's jury notice in an action for life insurance proceeds.

The insurer argued the claim was for declaratory relief, which must be tried without a jury under s. 108(2) of the Courts of Justice Act.

The court dismissed the motion for leave to appeal, finding no good reason to doubt the motion judge's conclusion that the pith and substance of the claim was a factual dispute regarding the deceased's insurability, rather than a claim for declaratory relief.