ODC 2010

The Ministry applied for judicial review of a Grievance Settlement Board decision finding that the Ministry breached the collective agreement by failing to create and fill a single Probation Officer 3 (PO3) position.

The Divisional Court dismissed the application, holding that the Board's interpretation of the collective agreement was reasonable and entitled to deference, as a literal interpretation would have led to an unrealistic result with no sensible purpose.

The appellants appealed a decision of the Ontario Securities Commission finding they breached the Securities Act by failing to disclose material changes regarding their mining leases in Sierra Leone.

The appellants argued the leases were not material and the Commission improperly relied on hearsay evidence.

The Divisional Court dismissed the appeal, finding the Commission's decision reasonable, as the company had invested heavily in the leases and actively tried to retain them, making the risk of their loss a material change requiring public disclosure.

The respondent was awarded costs of the appeal fixed at $8,000 all-inclusive.

The court substantially reduced the quantum claimed because both parties failed to address the narrow single issue upon which the appeal was ultimately disposed, which was raised by the panel after the hearing.

A minor deduction was also made for potentially unrecoverable travel disbursements.

The Ministry of Correctional Services brought an application for judicial review of a Human Rights Tribunal order requiring the production of settlement documentation.

The respondent employee sought the documents to prove the Ministry failed to implement previously ordered remedies for workplace racial discrimination.

The Divisional Court dismissed the application, finding that the adjudicator correctly ordered production because the documents were relevant and necessary to address a compelling interest of justice, falling within an exception to settlement privilege.

The applicant union sought judicial review of an arbitration award dismissing a grievance for severance pay for employees following a plant closure.

The arbitrator ruled that the employees were not eligible for severance pay under the Employment Standards Act, 2000 because they received pension benefits that fell within the statutory exemption.

The Divisional Court held that the arbitrator's interpretation of the legislation, including her consideration of the Pension Benefits Act and use of commuted values to compare pension benefits, was reasonable.

The application for judicial review was dismissed.

The Divisional Court heard three applications for judicial review of decisions by the Human Rights Tribunal of Ontario.

The Tribunal had found that a Toronto police officer discriminated against a Black mail carrier on the basis of race when he stopped and questioned him in an affluent neighbourhood.

The Tribunal also found the Toronto Police Services Board jointly and severally liable for the officer's conduct and awarded $10,000 in damages.

The officers and the Board sought judicial review of the liability and remedy decisions, while the complainant sought increased damages and systemic remedies.

The majority of the Divisional Court dismissed all three applications, finding that the Tribunal's conclusion that race was a factor in the stop was reasonable and supported by the evidence.

The Court also upheld the finding that the Board was liable as the officer's employer under the Human Rights Code.

A dissenting judge would have set aside the liability decision, finding the Tribunal's analysis fundamentally flawed.

The landlord appealed a decision of the Landlord and Tenant Board that ordered it to cease transferring hydro payment obligations to the tenants.

Following the Board's decision, the Ontario Energy Board ruled that the landlord's activities were unauthorized under the Electricity Act.

The Divisional Court dismissed the appeal as moot, noting that any concerns about implementing smart sub-metering under the new rules should be addressed by applying to the Board for a variation of its order.

The applicants sought judicial review of two Ontario Labour Relations Board decisions which found that a 1965 Working Agreement did not confer bargaining rights on them.

Applying the reasonableness standard of review, the Divisional Court upheld the Board's interpretation that the agreement merely bound the employer to abide by the provisions of the collective agreements, rather than binding the employer to the collective agreements themselves.

The court also dismissed arguments regarding a denial of natural justice due to delay, finding no prejudice was demonstrated.

Both applications were dismissed.

The representative plaintiffs in two certified class proceedings regarding allegedly defective implantable defibrillators appealed orders of the motion judge.

The motion judge had ordered the bifurcation of discovery and trial of common issues relating to the quantification of compensation for waiver of tort from the liability issues.

In one of the actions, the motion judge also refused to certify punitive damages as a common issue.

The Divisional Court dismissed the appeals, finding no error in principle in the motion judge's exercise of discretion to bifurcate the proceedings to ensure a fair and expeditious determination.

The Court also upheld the refusal to certify punitive damages as a common issue, agreeing that entitlement to punitive damages could not be rationally determined without first determining individual issues of causation and compensatory damages.

The applicant, a doctoral student, sought judicial review of a university tribunal's decision finding he violated the student code of conduct due to disruptive behaviour towards his supervisor.

The tribunal imposed restrictions on his contact with the supervisor and access to the laboratory.

The applicant also sought an order of mandamus to compel the university to provide him with a new supervisor.

The Divisional Court dismissed the application, finding that the tribunal accorded the applicant procedural fairness and that the restrictions were within the adjudicator's authority.

The court also declined to issue mandamus, as the applicant had no clear legal right to be provided with a supervisor against a professor's will.

The City of Port Colborne sought leave to appeal a decision of the Ontario Municipal Board, which found that Nyon Oil Inc. had standing to appeal the City's refusal to amend its official plan and zoning by-law.

The City argued the Board lacked jurisdiction and erred in finding Nyon was an 'applicant' under the Planning Act.

The Divisional Court dismissed the motion, holding that the Board had jurisdiction to determine its own scope and reasonably concluded that the City acted as Nyon's agent in applying for the amendments.

Leave to appeal was denied.

The applicant sought costs after successfully obtaining leave to appeal a property tax assessment decision.

Before the costs order was finalized, the applicant requested a correction to the court's earlier reasons, noting the court had misunderstood its position regarding a claim for a refund of taxes for 2006 to 2008.

The court corrected its reasons, acknowledging the applicant had not abandoned its claim for a refund, but found this did not change the outcome of the leave to appeal motion.

The court then awarded the applicant costs of $8,700 on a partial indemnity scale, to be paid equally by the respondents, finding the amount reasonable given the complexity and importance of the issues.

The applicant brought a motion for leave to appeal, which was dismissed.

The respondent sought costs of the motion on a partial indemnity scale.

The self-represented applicant opposed the costs, arguing they should be reserved to the trial judge and claiming protection under section 15 of the Charter.

The court found the Charter inapplicable to costs orders and fixed the respondent's costs at $2,832.38, payable out of the applicant's interest in the estate upon final distribution.

The appellant tenant appealed a Small Claims Court decision dismissing her claim for the return of prepaid rent and deposits.

The tenant had signed a lease that explicitly exempted the premises from the Tenant Protection Act but also contained a schedule stating the Act would prevail in the event of a conflict.

When the tenant attempted to sublet and the landlord failed to respond within seven days, the tenant terminated the lease in accordance with the Act.

The Divisional Court allowed the appeal, finding the lease patently ambiguous.

Applying the principle of contra proferentem, the court construed the ambiguity against the landlord who drafted the document, holding that the tenant was entitled to rely on the termination provisions of the Act.

The appellant veterinarian appealed a decision of the Discipline Committee finding him guilty of professional misconduct for purchasing and administering illegal, unlabelled drugs, and the subsequent penalty of a two-year suspension and $25,000 in costs.

The appellant argued he was denied procedural fairness due to inadequate reasons regarding credibility findings, the admission of hearsay, and consideration of a prior racing commission decision.

The Divisional Court dismissed the appeal, finding the Committee's reasons were adequate for appellate review, the evidentiary rulings were proper, and the penalty and costs were reasonable and entitled to deference.

The appellant physician moved for an extension of time to file a Notice of Appeal from a decision of the Health Professions Appeal and Review Board (HPARB) that confirmed the revocation of his hospital privileges.

The court dismissed the motion, finding that the appellant did not maintain a firm intention to appeal within the prescribed time limit, failed to provide a reasonable explanation for the delay, and that the appeal lacked merit.

Furthermore, granting the extension would cause significant prejudice to the respondent hospital, which had already moved forward with staffing and budgeting decisions.

The applicant sought judicial review of a decision by the Workplace Safety and Insurance Appeals Tribunal denying benefits for carpal tunnel syndrome.

The Divisional Court applied a reasonableness standard of review, noting the Tribunal's strong privative clause.

The court found that the Tribunal reasonably relied on the lack of temporal linkage between the applicant's employment and his diagnosis, as well as credibility findings and medical evidence.

The application for judicial review was dismissed with no order as to costs.

The appellant mother appealed a trial decision granting Crown wardship without access for her two youngest children.

She argued the trial judge erred by refusing to allow her to tape record the proceedings, preventing her from testifying about her proposed use of antabuse, and failing to properly consider the children's best interests.

The Divisional Court dismissed the appeal, finding the trial judge correctly applied the law regarding privacy and expert evidence, and that his findings regarding the children's best interests were supported by overwhelming evidence and entitled to deference.

The respondent appealed a motion judge's ruling that leave was required to appeal a temporary spousal support order made under the Divorce Act.

The respondent argued that the Divorce Act provided an unfettered right of appeal that superseded the leave requirements of the Courts of Justice Act.

The Divisional Court dismissed the appeal, holding that the Divorce Act's appeal provisions must be read in conjunction with provincial procedural rules, meaning leave to appeal an interlocutory order is still required.

The defendant developer moved for leave to appeal a motions judge's decision refusing to strike or stay an action brought by an individual condominium unit owner.

The unit owner sought damages for construction deficiencies, including to common elements.

The condominium corporation had already commenced a separate action on behalf of all owners for common element deficiencies.

The Divisional Court granted leave to appeal, finding conflicting decisions on whether an individual owner can maintain a separate action for common element deficiencies without opting out of the corporation's action, and good reason to doubt the correctness of the motions judge's decision.