ODC 2011

The plaintiffs appealed a trial judgment regarding a contract for the construction of a home that was destroyed by fire before completion.

The trial judge found the plaintiffs had terminated the contract and awarded the defendant $100,000 on its counterclaim for lost profits, while awarding the plaintiffs a small net judgment from insurance proceeds.

The Divisional Court upheld the finding that the plaintiffs terminated the contract but found the trial judge erred in calculating the insurance trust funds and the counterclaim damages.

The appeal was allowed in part, reducing the counterclaim to $20,000 and varying the net judgment in favour of the plaintiffs to $60,765.

The moving parties sought leave to appeal an order dismissing their appeal from a Master's decision.

The Master had dismissed their motion for a further and better affidavit of documents from the defendant accounting firm, limiting the scope of relevant documents to those relating to the fraud identified in a forensic auditor's report.

The Divisional Court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's order regarding relevance.

Although the motion judge erred in applying an overly restrictive standard of review, this error had no impact on the outcome.

The applicants sought leave to appeal a decision dismissing their motion to strike a paragraph of the respondent's reply pleading.

The applicants argued the paragraph improperly referred to a privileged settlement offer.

The Divisional Court dismissed the application for leave to appeal, finding the motions judge correctly applied the law of settlement privilege and that the evidentiary record supported the conclusion that the communication was not privileged.

The landlord appealed a Landlord and Tenant Board decision that found a 9 percent rent increase levied exclusively against pet-owning tenants was an impermissible penalty under the Residential Tenancies Act, 2006.

The Board held that this penalty substantially interfered with the tenant's reasonable enjoyment of the rental unit and awarded a rent abatement.

The Divisional Court dismissed the appeal, finding the Board's decision was reasonable and that the Board properly looked at the real substance of the rent increase.

The appellant appealed a trial decision ordering him to pay $1,400 per month in spousal support.

The Divisional Court found no errors of fact or law in the trial judge's decision, noting the award was slightly below the midpoint of the suggested guidelines based on the parties' incomes at the time.

The court dismissed the appeal but advised the self-represented appellant that he could seek a variation of the support order due to his recent medical leave and reduced income.

The Attorney General of Ontario brought a motion for an order prohibiting the respondents from making further motions in the proceedings without leave of a judge, pursuant to Rule 37.16 of the Rules of Civil Procedure.

The underlying matter involved an application for civil forfeiture under the Civil Remedies Act, to which the respondents responded with a counter-application seeking four billion dollars and alleging a massive conspiracy.

The court found that the respondents had initiated an endless string of unsuccessful, frivolous, and vexatious motions containing bizarre and scandalous allegations against judges and officials.

Applying the principles for vexatious proceedings, the court granted the motion and ordered costs of $1,500 payable to the Attorney General.

The appellant appealed an order denying her leave to commence a derivative proceeding on behalf of a dissolved corporation.

The motions judge had found that the appellant was not acting in good faith due to substantial delay and a multiplicity of actions.

The Divisional Court dismissed the appeal, holding that the motions judge's finding of a lack of good faith was owed deference and that the appellant failed to demonstrate a palpable and overriding error.

The moving parties, defendant solicitors in a professional negligence action, sought leave to appeal an order dismissing their motion to stay the action.

The plaintiff had previously settled a family law dispute with her husband and signed a release protecting him from third-party claims.

The solicitors issued a third-party claim against the husband for contribution and indemnity and sought to stay the plaintiff's action based on the release.

The Divisional Court dismissed the motion for leave to appeal, finding no legal basis for the third-party claim against the husband, as contribution under the Negligence Act applies only to joint tortfeasors, not to concurrent breaches of contract and tort.

The applicant sought judicial review of a Director's Delegate's decision dismissing her appeal of an Arbitrator's interlocutory order.

The Arbitrator had found that the insurer's failure to comply with notice requirements before terminating income replacement benefits did not entitle the applicant to ongoing benefits prior to a hearing on the merits.

The Divisional Court dismissed the application, finding that the Director's Delegate's decision to reject the interlocutory appeal was a reasonable exercise of discretion under the Dispute Resolution Practice Code.

The applicant school board sought judicial review of a labour arbitration award that required it to pay educational assistants for accompanying special needs students on an overnight camping trip.

The school board argued that the employees volunteered and were not 'required' to attend under the collective agreement.

The Divisional Court dismissed the application, finding that the arbitrator's interpretation of 'required' as 'needed' was reasonable, justified, and fell within a range of possible, acceptable outcomes.

Following the dismissal of the application, the court considered the parties' written submissions on costs.

The court fixed the costs payable by the applicant to the respondent union at $6,000.

The plaintiff moved for leave to appeal a decision setting aside a Master's order that required the defendant to produce solicitor-client communications.

The defendant had filed an affidavit explaining his previous solicitor's misapprehension of his position in support of a motion to amend his Statement of Defence.

The motion judge held that waiver of privilege depended on whether the amendment was made under Rule 51.05 or Rule 26.01.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the motion judge's decision and that the issue of conditional or partial waiver of privilege is of general public importance.

The plaintiffs moved for leave to appeal a decision refusing summary judgment in their favour regarding the ownership of shares in a Panama corporation.

The motion judge had concluded that a trial was necessary to determine whether the plaintiffs were entitled to 100% or 50% of the shares, as one of the plaintiffs had signed documents relinquishing 50% and the claim of duress lacked direct affidavit evidence.

The Divisional Court dismissed the motion for leave to appeal, finding no error in the motion judge's conclusion that a trial was required and noting that the issue did not raise questions of general or public importance.

The applicant, a pediatric anesthesiologist, sought judicial review of a university committee's decision denying his promotion to Associate Professor.

The denial was based on a prior finding of sexual harassment, which had resulted in probation rather than the dismissal recommended by the Dean.

Because the promotion was denied, the applicant lost his academic medical license.

The Divisional Court quashed the committee's decision, finding a breach of procedural fairness.

The court held that the Dean's active participation at every level of the promotion process, after having previously investigated the harassment complaint and recommended the applicant's dismissal, raised a reasonable apprehension of bias.

The applicants sought judicial review and an order in the nature of certiorari to quash a Justice of the Peace's decision dismissing their application for a stay of proceedings based on s. 11(b) Charter delay.

The applicants also sought an extension of time to serve the application.

The Divisional Court dismissed the application, finding that the delay in perfecting the application was not adequately explained and that certiorari for error of law on the face of the record is not available for interlocutory review of a pre-trial ruling in a quasi-criminal matter under the Provincial Offences Act.

The applicant union sought judicial review of an Ontario Labour Relations Board decision dismissing its application for certification and a related employer declaration against SNC.

The Board had found that SNC was not the employer of two construction labourers working on an SNC job site.

The Divisional Court dismissed the application, holding that the Board's determination of the true employer using the York Condominium factors was reasonable and fell squarely within its expertise.

The Court also rejected the union's argument that the Board breached natural justice by suggesting another entity might be the employer, noting the only material issue was whether SNC was the employer.

The applicant employer sought judicial review of an arbitrator's decision regarding whether periods of leave run concurrently with layoff notices under a collective agreement.

The arbitrator found that while notice periods can run concurrently with leave, doing so may be discriminatory under the Human Rights Code if the employee is unable to meaningfully consider their options while on leave.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation of the collective agreement and application of human rights principles was reasonable.

The defendant brought a motion under s. 21(5) of the Courts of Justice Act to set aside a decision refusing leave to appeal.

The Divisional Court dismissed the motion because it was brought more than two years after the decision, well beyond the four-day limit in Rule 61.16(6), with no reasonable explanation for the delay.

Furthermore, the court noted that such a motion will only be granted if the motions judge declined jurisdiction, which did not occur in this case.

The applicant sought to recognize and enforce two default judgments from a Florida court against the respondent for his role in a complex fraud scheme.

The respondent challenged the jurisdiction of the Florida court and raised defences of fraud and denial of natural justice.

The court found a real and substantial connection between the respondent and Florida, and rejected the defences.

However, because the respondent had a pending motion in Florida to set aside the judgments, the court recognized the judgments but stayed their enforcement in Ontario pending the outcome of the foreign motion.

The applicant sought judicial review to quash a Direction to Exclude issued by the Alcohol and Gaming Commission of Ontario.

The applicant argued that the Board lacked jurisdiction, breached procedural fairness by not holding an oral hearing, and made an unreasonable decision based on inadmissible evidence.

The Divisional Court dismissed the application, finding that the applicant had previously agreed to the rescission of an earlier direction and to proceed by written submissions.

The court held that the standard of review was reasonableness and that the Board's decision was reasonable given that the core allegations were undisputed.