ODC 2011

The applicant sought judicial review of a permit issued by the Minister of Natural Resources under the Endangered Species Act, which allowed for the disturbance of species at risk during the construction of a new bridge and parkway.

The applicant argued the Minister failed to apply the precautionary principle, improperly consulted experts, ignored relevant information, and was biased.

The Divisional Court dismissed the application, finding the Minister's decision was a matter of public policy entitled to broad deference, the statutory requirements for consultation and opinion-forming were met, and there was no reasonable apprehension of bias given the Minister's political and legislative functions.

The plaintiff brought motions for leave to appeal two orders of a motion judge: one adding a competing car dealership as a party defendant, and another dissolving an interim interlocutory injunction that had restrained the defendant manufacturer from appointing an additional dealer in the plaintiff's market area.

The Divisional Court dismissed both motions for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decisions and no issues of general importance to the administration of justice.

The College of Nurses of Ontario sought judicial review of an interim decision by the Human Rights Tribunal of Ontario, which refused to dismiss a human rights complaint filed by a nurse.

The nurse alleged discrimination based on disability after the College's Registration Committee imposed conditions on her certificates of registration.

The Health Professions Appeal and Review Board (HPARB) had previously reviewed and upheld the conditions, finding they reasonably accommodated her disability while protecting the public.

The Divisional Court quashed the Tribunal's decision, holding that the Tribunal erred in its interpretation of s. 45.1 of the Human Rights Code by failing to defer to HPARB's specialized public protection mandate and by improperly assessing the adequacy of HPARB's reasons rather than whether the substance of the complaint was appropriately dealt with.

The plaintiff's motion for leave to appeal was dismissed from the bench.

The court issued directions setting a timetable for the parties to make written submissions regarding the costs of the motion for leave to appeal and the defendant's motion to dismiss the action.

The appellant home builder appealed a Small Claims Court decision awarding the respondent purchasers $2,147.64 for disputed closing costs.

The dispute centered on the interpretation of a schedule in the Agreement of Purchase and Sale regarding whether closing costs were capped and included in the purchase price or payable as an extra.

The Divisional Court dismissed the appeal, finding no procedural unfairness in the trial judge's admission of parol evidence regarding misrepresentations by the builder's agents, as the issue was sufficiently raised in the pleadings.

The court also held that the agreement contained an ambiguity, justifying the trial judge's reliance on extrinsic evidence of the negotiating history to interpret the contract in favour of the purchasers.

The Director of the Ontario Disability Support Program appealed a decision of the Social Benefits Tribunal finding the respondent to be a person with a disability.

The Divisional Court allowed the appeal, finding the Tribunal committed a reversible error by relying on social and external factors—such as the respondent's lack of education, her husband's unemployment, and her childcare responsibilities—rather than her medical impairments to conclude she was substantially restricted in her ability to function in a workplace.

The Court also found the Tribunal's reasons to be inadequate.

The matter was remitted to a differently constituted panel for a new hearing.

The applicants sought judicial review of a decision by the Ontario Racing Commission, which upheld a private racetrack's decision to suspend the applicant owner's racing and stabling privileges following the death of a 13-year-old racehorse during training.

The Divisional Court dismissed the application, finding that the Commission had jurisdiction to determine whether the public interest warranted interfering with the racetrack's private property rights.

The Court held that the Commission's decision was procedurally fair and reasonable, as the evidence supported the finding that the applicant failed to take reasonable precautions regarding the horse's fitness.

The appellants appealed an interlocutory order granting the respondents unfettered access to a residential property to retrieve personal belongings.

The motions judge had noted the appellants in default and refused to allow their counsel to make submissions on a motion to set aside the default or on the merits of the respondents' motion.

The Divisional Court allowed the appeal and set aside the order, finding that the motions judge erred in law and denied procedural fairness by refusing to hear counsel, misinterpreting Rule 19.02, granting relief that far exceeded the notice of motion, and failing to provide reasons.

The Director of the Ontario Disability Support Program appealed a Social Benefits Tribunal decision finding the respondent to be a 'person with a disability' under s. 4(1) of the Ontario Disability Support Program Act.

The Director argued the Tribunal erred by relying on the respondent's testimony to find a 'substantial' impairment, asserting that medical evidence was required.

The Divisional Court dismissed the appeal, holding that while medical evidence is required to verify the impairment, the determination of whether it is 'substantial' requires consideration of the totality of the evidence, including the claimant's credible testimony.

The appellant, a foreign-trained physician, appealed a decision of the Health Professions Appeal and Review Board confirming the College of Physicians and Surgeons of Ontario's refusal to issue him a certificate of registration.

The appellant had participated in a practice assessment program but failed to meet the non-exemptible standards for registration, including sufficient knowledge, skill, judgment, and mental competence.

The Divisional Court dismissed the appeal, finding that the Board and the College's Registration Committee complied with procedural fairness and reasonably concluded the appellant lacked the required qualifications to practice medicine in Ontario.

The applicant union sought judicial review of decisions by the Ontario Labour Relations Board approving a settlement between a rival union and the employers.

The settlement declared two drugstore chains to be related employers and granted the rival union sole bargaining rights for all employees of the non-unionized chain in Ontario, including the Ottawa region where the applicant traditionally represented employees of the unionized chain.

The applicant was not given notice of the settlement or the underlying applications.

The Divisional Court granted the application for judicial review, finding that the Board breached the duty of procedural fairness by unreasonably requiring the applicant to already represent employees of the non-unionized chain to be entitled to notice.

The Court held that the applicant was significantly affected by the decision and had a right to intervene.

The appellant teacher appealed a decision of the Fitness to Practise Committee revoking his teaching certificate due to incapacity.

The Committee relied on a provisional psychiatric diagnosis of delusional disorder based on a document review, as the appellant refused to attend a psychiatric assessment or the final days of his hearing.

The Divisional Court dismissed the appeal, finding the expert evidence was admissible and the Committee's decision was reasonable.

The Court also found no breach of procedural fairness, noting the appellant waived his right to complain by choosing not to attend the hearing.

The appellant appealed a Small Claims Court judgment that dismissed her claim and awarded the respondent brokerage $10,000 for a deficit in her margin account.

The appellant argued the brokerage improperly liquidated her account before the deadline provided in a margin call e-mail.

The Divisional Court dismissed the appeal, finding that the account agreement expressly permitted the brokerage to liquidate the account without notice to protect its financial position, and this contractual right prevailed over the e-mail.

The applicant sought judicial review of a decision by the Minister of Natural Resources granting a permit under the Endangered Species Act, 2007 for a highway project.

At the opening of the hearing, the respondents brought a preliminary motion to strike three affidavits filed by the applicant.

The Divisional Court granted the motion, striking two affidavits in their entirety and most of the third, emphasizing that judicial review is generally restricted to the record before the decision-maker.

The court noted that fresh evidence is only admissible in exceptional circumstances, which were not present, and criticized the parties for not resolving the evidentiary record prior to the hearing.

The applicant employer sought judicial review of two Ontario Labour Relations Board decisions certifying the respondent union and refusing reconsideration.

The employer argued the union fraudulently misrepresented the delivery date of its certification application, causing the employer's response to be deemed late.

The Divisional Court dismissed the application, finding the Board's refusal to reconsider was reasonable because the employer had notice of the delivery date dispute prior to the initial decision and failed to raise it in a timely manner.

The applicants sought leave to appeal two decisions of the Assessment Review Board regarding the property tax assessment of parking lots and a development site in downtown Toronto.

The core issue was whether 'air rights' or development rights should be classified as 'land' or 'real property' under the Assessment Act, which would allow them to be classified as 'vacant land' or 'excess land' and taxed at a lower rate.

The Divisional Court found no serious debate that air rights are not land for the purposes of the Act, as they have no physical existence and are merely attributes of the land.

The applications for leave to appeal were dismissed.

The employer brought an application for judicial review to quash an arbitration award that found supervisors were included in the bargaining unit.

The employer argued the arbitration board chair denied natural justice by circulating a draft award without a prior meeting of the panel, and that the majority's interpretation of the collective agreement was unreasonable.

The Divisional Court dismissed the application, finding no agreement to hold a meeting prior to drafting, that the employer nominee had an opportunity to participate, and that the majority's interpretation of the recognition clause was reasonable.

The applicants sought leave to appeal an Assessment Review Board decision classifying their properties, which were under construction for residential condominiums, as multi-residential rather than residential for property tax purposes.

The Divisional Court found no error in the Board's interpretation that buildings under construction constitute 'vacant land' under O. Reg. 282/98, as they were not yet being used.

The Court also upheld the Board's finding that the properties were principally zoned for multi-residential development.

The motion for leave to appeal was dismissed.

The applicant insurer sought judicial review of a Director's Delegate decision that overturned an arbitrator's order granting an adjournment and requiring the insured to attend an independent medical examination.

The insured had delivered new orthopedic reports shortly before the scheduled arbitration.

The Divisional Court exercised its discretion to hear the interlocutory judicial review, finding that proceeding without the examination would deny the insurer procedural fairness and amount to trial by ambush.

The Court held that the Director's Delegate unreasonably fettered the arbitrator's discretion to ensure a fair hearing by requiring 'extraordinary circumstances' for an adjournment.

The decision of the Director's Delegate was quashed and the arbitrator's decision restored.

The appellant appealed a trial judgment ordering her to pay her proportionate share of post-secondary tuition fees for her adult son under section 7 of the Child Support Guidelines.

The appellant argued the son had withdrawn from parental control and was no longer a dependent child.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual determination that the son remained a child of the marriage under the Divorce Act while pursuing his education.