ODC 2011

The appellant farmer appealed a decision of the Fire Safety Commission that upheld an inspection order imposing conditions on open air burning of brush on his property.

The appellant argued the Commission erred in its interpretation of the Fire Protection and Prevention Act by not requiring proof that a fire 'would seriously endanger' health and safety before imposing conditions.

The Divisional Court dismissed the appeal, finding the Commission's interpretation of the Act was correct and its factual findings regarding the necessity of the conditions were reasonable and supported by the evidence.

The applicant, a former NHL referee, sought judicial review of an Ontario Labour Relations Board decision dismissing his claim that he was terminated for union activity.

On the judicial review application, the applicant filed a 32-page affidavit.

The respondent NHL brought a motion to strike the affidavit.

The Divisional Court granted the motion, holding that affidavit evidence on judicial review is only admissible to show a complete absence of evidence on an essential point or a breach of natural justice.

The court found the applicant was improperly attempting to re-weigh the evidence before the Board.

The applicant sought judicial review of a decision by the Ontario Civilian Police Commission confirming the Chief of Police's dismissal of his complaint against police officers.

The complaint, alleging assault and fabricated charges, was dismissed because it was made more than six months after the incident.

The Divisional Court found the Commission's decision reasonable, noting a 14-month delay in bringing the complaint, including a four-month delay after the related charges were disposed of.

The application for judicial review was dismissed.

The appellants appealed a decision of the respondent's Discipline Committee denying them the costs of a hearing.

The appellants argued that the Complaints Committee's referral of the matter to a hearing was unwarranted because it relied on an expert opinion that should have been rejected upon more careful investigation.

The Divisional Court dismissed the appeal, finding that the Discipline Committee reasonably concluded the referral was not unwarranted based on the information before the Complaints Committee at the time.

The appellant, a victim of domestic abuse, appealed a decision of the Criminal Injuries Compensation Board denying her compensation for physical therapies and loss of income.

The Divisional Court upheld the Board's denial of compensation for physical therapies, finding no error in its conclusion that the assaults did not cause the physical injuries.

However, the Court found the Board may have fettered its discretion by applying a rigid policy that restricted loss of income claims to applicants who were actively employed or had confirmed offers at the time of the injury.

The appeal was allowed in part, and the loss of income issue was remitted to the Board for reconsideration.

The applicant sought judicial review of a Public Service Grievance Board decision denying him statutory benefits for terminated or laid-off employees.

The Divisional Court upheld the Board's finding that the applicant's employment ended by mutual agreement and in exchange for valuable consideration, rather than by termination or layoff.

The application was dismissed with costs awarded to the respondent.

Following the dismissal of the moving party's motions for leave to appeal and for a stay, the successful responding parties sought their costs on a partial indemnity basis.

The moving party failed to provide any costs submissions.

The court considered the principle of proportionality and the moving party's conduct which thwarted the bankruptcy trustee's mandate.

Costs were fixed at $20,000 for the trustee and $7,323.41 for the applicants, payable by the moving party.

The plaintiff, having been successful on an appeal from a Master's decision, sought costs of the appeal on a substantial or full indemnity scale, arguing the appeal was spurious.

The court found no basis for an elevated scale of costs, noting the defendants had a right to appeal and the single legal issue was not complex.

Costs were fixed at $4,500 on a partial indemnity scale, having regard to the principle of proportionality.

During an appeal regarding a municipal election, the intervenor/appellant sought to introduce affidavit material detailing after-the-fact efforts to determine voter eligibility through canvassing and signed forms.

The Divisional Court ruled the evidence inadmissible, citing concerns over its hearsay nature and lack of reliability based on how it was compiled.

Consequently, the responding affidavit material was also excluded.

The appellant wife appealed a trial decision regarding the equalization of net family properties.

The primary issue was whether the trial judge erred in law by failing to deduct a line of credit, secured by a collateral mortgage on the matrimonial home, from the respondent husband's date of marriage assets.

The Divisional Court held that under the Family Law Act and the test in Collier v. Torbar, a debt must be incurred to acquire, maintain, or improve the matrimonial home to be exempt from deduction.

The court adjusted the equalization payment to account for this error, as well as omitted assets including a vehicle and a generator, increasing the payment owed to the appellant to $96,462.41.

The representative plaintiffs in a class action against a private school sought leave to appeal a motions judge's decision permitting the defendants to bring third party claims against the parents of the students, who were members of the certified class.

The plaintiffs argued that because they intended to limit their claims to the several liability of the defendants, third party claims for contribution and indemnity were legally barred, relying on the Court of Appeal's decision in Taylor.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision and noting the issue's importance to access to justice.

The appellant appealed a decision declining to exercise habeas corpus jurisdiction regarding his detention as an involuntary patient at a psychiatric hospital.

The Divisional Court quashed the appeal, finding it lacked jurisdiction because the underlying decision was a final order, meaning any appeal must be directed to the Court of Appeal.

The court further noted that even if it had jurisdiction, it would have declined to hear the appeal as the issue was moot and no live controversy remained.

The plaintiffs brought a motion for partial summary judgment for rent arrears and unpaid utility accounts under a commercial lease, and to dismiss the defendant's counterclaim for conversion of chattels.

The court granted partial summary judgment for the rent and utilities, finding no genuine issue for trial as the defendant failed to address these claims in its materials.

However, the court refused to dismiss the counterclaim, finding it raised a triable issue.

The court stayed the execution of the summary judgment pending the counterclaim, on the condition that the defendant pay the judgment amount into court.

The moving party sought costs of her successful motion to intervene as a party in an appeal.

The respondent argued that no costs should be awarded or that costs should be determined by the panel hearing the appeal, alleging that the moving party violated the scope of the permitted intervention by filing prohibited evidence.

The court ordered that the costs of the motion to intervene be determined by the panel hearing the appeal, as they were best positioned to assess compliance with the intervention conditions.

During an appeal, an added party sought to raise a Charter challenge to provisions of the Municipal Elections Act.

The Divisional Court declined to hear the constitutional question, noting that the evidentiary record was woefully inadequate.

Furthermore, the order adding the party explicitly stated that it was not to unduly widen the scope of the appeal.

The court held that a Charter application could be brought at any time on a proper record, but it would not be heard in the current appeal nor referred back to the motions judge.

The mother sought leave to appeal an order severing the father's bankruptcy file from the outstanding family law claims.

The mother argued that a previous case management order had consolidated the matters and that the trial judge erred in severing them.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decision and concluding that the trial judge had the authority to manage the trial process.

The court emphasized that further delay was undesirable.

The representative plaintiff in a certified class action sought leave to appeal a motions judge's decision dismissing a motion for enhanced notice to class members.

The settlement agreement, which capped the settlement fund at $2.25 million with the residue reverting to the defendants, had been approved by the court.

Due to a low take-up rate, the plaintiff sought to modify the notice provisions.

The motions judge held that the court could not modify a concluded and court-approved settlement agreement without the defendants' consent.

The Divisional Court denied leave to appeal, finding no good reason to doubt the correctness of the motions judge's decision.

The applicant School Board sought judicial review of two OLRB decisions that allowed a union to proceed with a construction grievance despite referring it to arbitration four months past the collective agreement's 14-day deadline.

The OLRB vice-chair had ruled the timelines were directory and that the OLRB had broad discretion under s. 133 of the Labour Relations Act to extend them.

The Divisional Court quashed the decisions, holding that the collective agreement's timelines were mandatory and that neither s. 48(16) nor s. 133 of the Act granted the OLRB jurisdiction to extend the time for referring a grievance to arbitration.

The applicant, a pipe fitter, was seriously injured in a gas explosion and commenced a civil action for damages.

The respondents brought a 'right to sue' application before the Workplace Safety and Insurance Appeals Tribunal (WSIAT), which determined the applicant was a worker, not an independent contractor, and thus barred from suing.

The applicant sought judicial review.

The Divisional Court dismissed the application, finding the WSIAT's decision was reasonable, grounded in evidence, and properly applied the legal test for independent contractor status.

The appellants appealed a trial judgment finding them liable for oppressive conduct in a joint venture for property development.

The trial judge found the appellants had extracted equity from the properties through unauthorized mortgages and transferred the proceeds to their own companies, ordering an accounting and substantial indemnity costs.

The Divisional Court dismissed the appeal, finding no error in the trial judge's valuation, cost calculations, or costs award, noting the appellants' conduct was reprehensible.

The respondents' cross-appeal regarding an erroneous deduction from their capital allocation was allowed.