ODC 2011

The appellant appealed a trial judge's decision apportioning the proceeds of sale of a home formerly occupied by the parties.

The parties, who lived together but were not married, had an agreement to share expenses and divide the proceeds of the home's sale equally after reimbursing the appellant's down payment.

The appellant argued the trial judge erred in granting the respondent an allowance akin to occupation rent, as they were not joint owners or spouses under the Family Law Act.

The Divisional Court dismissed the appeal, finding that the trial judge appropriately considered all circumstances, including the appellant's sole occupation of the property and the equitable claims of unjust enrichment and constructive trust, to arrive at an equitable division of the proceeds.

The applicant moved to set aside a Registrar's order dismissing his appeal for failure to perfect.

The applicant claimed he overlooked the filing requirements due to family stress and argued he was denied accommodation for his hearing impairment in the lower court.

The Divisional Court dismissed the motion, noting the applicant's history of abusive and duplicitous proceedings, his failure to file a proper motion record, and his failure to meet the criteria for setting aside a dismissal order.

The court also dismissed his repeated request to remove the respondent's counsel and awarded costs to the respondent.

The applicant, a registered nurse, sought judicial review of a decision by the Inquiries, Complaints and Reports Committee (ICRC) of the College of Nurses of Ontario, which issued a Letter of Caution and required remediation.

The College conceded that the ICRC breached procedural fairness by relying on witness statements without disclosing them to the applicant or providing an opportunity to respond.

The Divisional Court quashed the ICRC's decision and remitted the matter for a fresh determination, while dismissing the applicant's other jurisdictional and Charter arguments.

The appellant appealed a summary judgment decision dismissing its claim for unpaid construction work as statute-barred.

The motions judge found that the invoice rendered by the appellant was a demand obligation under s. 5(3) of the Limitations Act, 2002, and that the limitation period commenced on the date the invoice was rendered, precluding the discoverability principle.

The Divisional Court majority upheld the decision, confirming that an invoice payable on demand is a demand obligation and time starts to run when the demand is made.

The appeal was dismissed.

The responding parties sought judicial review of a coroner's jury verdict and recommendations regarding a death following a chiropractic neck manipulation.

The application was commenced 10 months after the verdict and remained unperfected nearly seven years later.

The moving party coroner moved to dismiss the application for delay.

The court held that a single judge of the Divisional Court has jurisdiction to dismiss for delay in clear cases.

The court found the delay inordinate, rejected the explanation that the responding parties were waiting for complete transcripts of submissions made in the absence of the jury, and found significant prejudice to the deceased's family and the public interest.

The motion to dismiss for delay was granted.

The appellants appealed a Licence Appeal Tribunal decision ordering the cancellation of their Commercial Vehicle Operator's Registration (CVOR) certificates due to poor safety records.

The appellants sought to introduce fresh evidence of improved safety performance since the Tribunal's decision.

The Divisional Court dismissed the appeal, finding the Tribunal's decision to cancel the certificates was reasonable given the appellants' high violation rates and past safety issues.

The Court declined to admit the fresh evidence, noting it either could have been obtained prior to the hearing or did not render the sanction manifestly unfit.

The applicant, a paralegal candidate, sought judicial review of a Law Society Hearing Panel decision that quashed his motion challenging the constitutional validity of By-law 4 during his good character hearing.

The Hearing Panel had concluded it lacked institutional competence to conduct broad constitutional inquiries into the governance of the Society.

The Divisional Court dismissed the application, agreeing that the Hearing Panel correctly held it had no jurisdiction to deal with the broad issue of the by-law's validity, and that such questions are appropriately raised before a court of original jurisdiction.

The applicants, an employee and the employer, sought judicial review of decisions by the Ontario Labour Relations Board and the Minister of Labour regarding the negotiation of a first collective agreement.

The Board had ordered first agreement arbitration, and the Minister subsequently cancelled a scheduled final offer vote.

The Divisional Court dismissed the applications, finding that the Board did not breach its duty of fairness, the Vice-Chair was not biased, the decision to order arbitration was reasonable, and the Minister had the jurisdiction to cancel the vote.

The appellants were entirely successful on their appeal and sought costs.

The court awarded the appellants costs fixed at $1,000 for the motion for leave to appeal and $4,500 for the appeal, noting that the outcome was more favourable than an offer to settle made to them by the respondents.

The court found it was unreasonable for the respondents to oppose the appeal given the lack of reasonable prospect of success.

The appellant homeowner appealed a Small Claims Court judgment awarding the respondent painter $1,520 plus costs for unpaid work under an oral contract.

The appellant argued the trial judge erred in calculating the amount owed and in finding that the Consumer Protection Act did not apply to limit the price to the original estimate.

The Divisional Court found a minor mathematical error and reduced the judgment to $1,480, but upheld the trial judge's finding that the Consumer Protection Act did not apply to this type of construction contract.

The appeal was allowed in part to correct the calculation.

The court issued an amendment to its original judgment released on July 28, 2011, to correct an error regarding the place where the appeal was heard.

The original judgment incorrectly stated the appeal was heard in London, and was amended to reflect that it was heard in Hamilton.

The applicant sought judicial review to quash ongoing proceedings before the Ontario Labour Relations Board, arguing that the Board's mid-hearing decision to require will-say statements and limit examination-in-chief to thirty minutes was procedurally unfair.

The Divisional Court dismissed the application, finding no prospect of real unfairness on the record and noting that judicial review of administrative action during a pending hearing should generally be avoided until the hearing is completed.

The applicant sought judicial review of decisions by the Social Benefits Tribunal that found her disentitled to ODSP benefits after she inherited a house from her mother.

The Divisional Court dismissed the application, finding that the applicant had an adequate alternative remedy in the form of a statutory right of appeal, which she failed to pursue within the time limit.

The court also noted undue delay in bringing the application and found no merit to the substantive arguments, as the applicant was the legal owner of the inherited house.

The defendant brought a motion for leave to appeal an order granting the plaintiff leave to amend her Statement of Claim to add a new cause of action.

The defendant argued the new claim was time-barred and relied on Rule 62.02(4), asserting the motion judge's decision conflicted with other cases on discoverability under the Limitations Act.

The Divisional Court dismissed the motion, holding that a failure to apply established principles does not constitute a conflicting decision requiring resolution under the Rule.

The appellant appealed the dismissal of his motion to vary a consent order for child and spousal support.

The motions judge had found no material change in circumstances, noting the appellant was deliberately underemployed and maintained a comfortable lifestyle financed by credit, despite claiming no income.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's findings of fact or application of the law.

The appellant appealed a decision of the Criminal Injuries Compensation Board that reduced and ultimately terminated his periodic monthly payments.

The appellant had been receiving compensation for injuries sustained when he intervened in a motor vehicle accident involving an intoxicated driver.

The Board terminated the payments after 14 years, noting the appellant's receipt of other income replacement benefits, lack of retraining efforts, and the impact of a pre-existing injury.

The Divisional Court dismissed the appeal, finding no error of law in the Board's exercise of its discretion to vary the compensation order under section 25 of the Compensation for Victims of Crime Act.

The moving party sought leave to appeal to the Divisional Court from a motions judge's dismissal of an ex parte motion for a Certificate of Pending Litigation.

The moving party argued the motions judge erred in finding no fraudulent conveyance and requiring an interest in land.

The court dismissed the motion for leave to appeal, finding that because the underlying decision was ex parte, conclusory, and contrary to established law, it had no precedential value and granting leave would serve no public interest.

The applicant, a medical resident dismissed from the respondent's neurosurgery program, brought an application for judicial review alleging breaches of natural justice and his Charter right to freedom of expression.

He brought a motion to amend his Notice of Application to add a request for a Charter declaration and to admit fresh affidavit evidence.

The court granted the amendment, finding it was not an independent claim but a request for a declaration regarding the decision under review.

The court partially admitted the affidavit evidence, allowing portions that demonstrated a potential breach of natural justice or met the test for fresh evidence, while excluding irrelevant or repetitive paragraphs.

The employer appealed a summary judgment awarding the plaintiff damages based on a six-month notice period for wrongful dismissal.

The Divisional Court upheld the summary judgment, finding no material facts in dispute regarding the notice period or mitigation efforts.

However, the court reduced the damages by $2,800 due to a calculation error regarding benefits.

The court also granted leave to appeal costs and increased the plaintiff's costs award to $18,000, finding the motion judge erred by failing to apply the cost consequences of Rule 49 after the plaintiff made a favourable offer to settle.

The applicant university sought judicial review of an arbitration award that granted a former employee sick leave benefits for a period after his fixed-term employment contract had expired.

The arbitrator found that the employee's entitlement to the benefits had vested while he was still employed, bridging the gap to his long-term disability benefits.

The Divisional Court dismissed the application, holding that the standard of review was reasonableness and that the arbitrator's interpretation of the collective agreement was transparent, rational, and justified.