ODC 2011

The moving party sought leave to appeal an order granting the responding party interim disbursements of $25,300.99 for legal fees, payable from the proceeds of the sale of the matrimonial home.

The application judge had ordered the disbursement to 'level the playing field' after the moving party's legal aid lien was paid from the proceeds.

The Divisional Court granted leave to appeal, finding conflicting decisions on whether interim disbursements can be ordered solely for legal fees and whether they should be paid from funds over which the opposing party has an arguable claim, particularly when the party receiving the funds will likely owe an equalization payment.

The appellant, a tenant of 33 years, sought an extension of time to appeal an eviction order made under the Landlord and Tenant Act.

The court applied the test for extending time and found that the appellant had formed an intention to appeal, the delay was short and explained, and there was no prejudice to the respondent.

The court held that the appellant raised an arguable ground of appeal regarding the interpretation of s. 72(2)(a) of the Act, which had not been previously judicially interpreted.

The application to extend time was granted.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board order terminating the tenancy for non-payment of rent.

The tenant had not paid rent since December 2010 and raised bizarre grounds of appeal, including claims of government harassment and a de facto marriage obligation.

The court found the appeal to be utterly without merit and an abuse of process intended only to stay the eviction order.

The motion was granted, the appeal was quashed, and the stay was vacated.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that found the Ontario College of Teachers discriminated against him but awarded only $10,000 in general damages and no damages for loss of income.

The Divisional Court applied a reasonableness standard of review and dismissed the application.

The Court found it was reasonable for the Tribunal to conclude that the applicant lacked the required academic and language proficiency for certification, meaning he had no chance of being hired to teach in Ontario regardless of the discriminatory conduct.

The appellant, a city councillor, appealed a declaration that he contravened the Municipal Conflict of Interest Act by failing to disclose a pecuniary interest in a municipal tax sale.

The appellant had expressed interest in bidding on a property and arranged to view it before formally submitting a bid through his corporation.

He did not declare his interest at council meetings where the property's sale was discussed prior to his bid submission.

The Divisional Court dismissed the appeal, holding that the appellant's pecuniary interest crystallized when he first became interested in purchasing the property, not when he submitted the bid.

The court found the saving provision for inadvertence or error in judgment did not apply and upheld the four-year disqualification from city council.

The appellant was successful in an appeal from a Small Claims Court decision and sought costs of $17,185.79 on a substantial indemnity basis.

The court found no basis for substantial indemnity costs as there was no relevant offer to settle.

Applying the factors in Rule 57 of the Rules of Civil Procedure, including the amount at issue ($10,000) and the reasonable expectations of the unsuccessful party, the court found the requested amount unreasonable.

Costs were fixed at $5,000 all-inclusive.

The moving party sought leave to appeal an Ontario Municipal Board (OMB) decision that approved a zoning by-law amendment permitting a 12-storey condominium development on a dynamic beach.

The moving party argued the development site fell within the Dynamic Beach Hazard, where development is prohibited.

The OMB accepted expert engineering evidence from the respondents that proposed shoreline protection works would adequately protect the site and mark the landward limit of the hazard.

The Divisional Court dismissed the motion for leave to appeal, finding that the OMB's preference for one expert's opinion over others was a finding of fact, not an error of law, and therefore did not meet the test for leave to appeal.

The offender pleaded guilty to two counts of possession of child pornography.

He had a lengthy criminal record including sexual assaults on children and a prior conviction for possession of child pornography.

The Crown sought a Long Term Offender declaration.

The court accepted a joint submission for a two-year penitentiary sentence to allow the offender to participate in an intensive sex offender treatment program.

The court also declared the offender a Long Term Offender and imposed an eight-year long-term supervision order with stringent conditions, including psychiatric treatment and restrictions on internet access.

The moving party's motion for leave to appeal an interlocutory order was dismissed from the bench.

The court subsequently received written submissions on costs from the successful responding party.

The court awarded the responding party costs of the motion on a partial indemnity basis, fixed at $500.

The appellant father sought leave to appeal and a stay of an interlocutory order finding him in contempt and requiring him to reinstate a $400,000 life insurance policy to secure child support, or alternatively travel to Ontario for a medical examination.

The father argued that his child support obligations had been previously suspended, and therefore the court lacked jurisdiction under the Family Law Act to order life insurance to secure a non-existent support obligation.

The court granted leave to appeal, finding good reason to doubt the correctness of ordering life insurance as a 'future fund' without an existing support obligation, and stayed the lower court orders pending the appeal.

The applicant physician brought an appeal and an application for judicial review challenging an interlocutory decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario.

The Committee had ruled it had jurisdiction to hear allegations regarding patients not specifically named in the Notice of Hearing.

The Divisional Court quashed the application for judicial review for prematurity, finding no exceptional circumstances to intervene in the ongoing disciplinary process, as the Committee reasonably concluded it had jurisdiction.

The Court also quashed the appeal, holding that it lacked jurisdiction under the Health Professions Procedural Code to hear an appeal from an interlocutory decision.

The moving parties sought leave to appeal an order imposing conditions on access to audio tapes and a two-week notice period for further motions.

The Divisional Court dismissed the motion, noting that the condition regarding access to the tapes had already been complied with and the notice period was a procedural matter within the motions judge's discretion.

No costs were ordered.

The applicant sought judicial review of a Law Society Hearing Panel decision and an Appeal Panel's interlocutory decision refusing a stay.

The Divisional Court quashed the application as premature, holding that the applicant must exhaust his internal remedies before the Law Society Appeal Panel before seeking review by the Court.

Costs of $2,000 were awarded to the respondent.

Three parties brought motions to intervene in appeals from a judgment declaring two municipal elections invalid.

The successful candidate in one ward sought to be added as a party, a voter whose vote was discounted sought to intervene as a friend of the court, and a neighbouring municipality sought to intervene as a friend of the court.

The court granted all three motions, finding that the successful candidate had a direct interest, the voter offered a unique perspective on the voting process, and the neighbouring municipality could provide useful context on the impact of the lower court's decision on municipal elections generally.

The Crown appealed the accused's acquittal on a charge of refusing to provide a breath sample.

The trial judge had excluded the evidence of the refusal under s. 24(2) of the Charter, finding that the police officer breached the accused's s. 10(b) rights by providing an inadequate summary of the right to counsel while waiting 8 to 9 minutes for an Approved Screening Device (ASD) to arrive.

On appeal, the Summary Conviction Appeal Court found that the trial judge erred by failing to determine the threshold issue of whether the ASD demand was valid, specifically whether the 'forthwith' requirement was met and if there was a realistic opportunity to consult counsel during the wait.

The appeal was allowed and a new trial ordered, as the essential factual findings regarding the validity of the demand had not been made.

The moving party sought leave to appeal an order appointing an investigative receiver over it.

The moving party argued the motion judge erred by not first finding evidence of fraud or dissipation of assets.

The Divisional Court dismissed the motion, finding the motion judge applied the correct test under s. 101 of the Courts of Justice Act and that the appointment was just and convenient given the interconnectedness of the moving party with bankrupt companies and the flow of funds between them.

The test for leave to appeal was not met.

The defendants appealed an order dismissing their motion to set aside a default judgment.

The Master had found that the defendants failed to provide a plausible explanation for the default and did not have an arguable defence on the merits.

The defendants argued the Master erred in interpreting an option agreement as not being a demand obligation, which affected when the limitation period commenced.

The Divisional Court upheld the Master's decision, agreeing that the cause of action did not arise until 45 days after the option was exercised, meaning the action was commenced within the limitation period.

The appeal was dismissed.

The appellants appealed two decisions of the Ontario Securities Commission regarding their involvement in a collapsed investment structure.

The first appeal argued that televised comments by the Commission's Chair created a reasonable apprehension of bias.

The Divisional Court dismissed this appeal, finding that the Chair was acting within his statutory authority and that the Commission's structure adequately separated investigative and adjudicative functions.

The second appeal challenged the Commission's findings on the merits, alleging breaches of procedural fairness, misapplication of rules, and errors in finding the appellants were the directing minds who misled staff.

The court dismissed the second appeal, finding the procedures fair and the factual conclusions reasonable.

The plaintiffs sought leave to appeal an order denying a temporary stay of their class proceeding and requiring them to deliver a certification record by a specified date or face a permanent stay.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the case management judge's order.

The court noted that commencing class proceedings merely to toll the limitation period without the resources or willingness to proceed in Ontario constitutes an abuse of process.

The plaintiff sought leave to appeal an order continuing a Mareva injunction on the condition that it post $50,000 as security for costs.

The plaintiff argued that the judge erred by using section 101 of the Courts of Justice Act to order security for costs instead of the specific regime under Rule 56.

The Divisional Court dismissed the motion, finding the judge had jurisdiction to impose the term under section 101 to do justice between the parties, especially given the plaintiff was an insolvent foreign resident whose undertaking as to damages was worthless.