ODC 2012

The Divisional Court issued a costs endorsement following the dismissal of the appellant's appeal.

The respondent law firm sought costs of up to $29,532.91 on a substantial indemnity basis.

The court noted that the respondent's counsel had invested excessive time in the matter and sought compensation at an unjustifiably high rate, particularly given previous judicial criticism of his conduct.

Considering the lack of complexity and brief attendance required, the court fixed costs payable by the appellant to the respondent at $2,000 all-inclusive.

The Independent Police Review Director brought a motion to quash a summons to witness issued to an investigator and for a declaration that counsel to the OIPRD was not required to bring the investigative file to her cross-examination.

The underlying application for judicial review sought to defer interviews of two police officers facing criminal charges until after their criminal trial.

The court granted the motion, finding that the evidence sought from the investigator and the investigative file was not relevant or necessary for the judicial review application, as it exceeded the narrow focus of the proceeding.

In a class action carriage dispute, the appellant was granted leave to appeal on only two specific issues.

The appellant subsequently filed a notice of appeal and factum that included arguments on issues for which leave had been denied.

The moving parties brought a motion to strike those portions of the appellant's materials.

The court held that an appellant cannot raise issues for which leave to appeal was explicitly refused, as doing so would render the leave requirement meaningless.

The court ordered the appellant to file a revised notice of appeal and factum limited to the permitted grounds.

Two hospitals sought judicial review of arbitration awards that found they violated their collective agreements by contracting out the work of Sterile Processing Technicians without issuing layoff notices.

The arbitrators held that the contracting out resulted in a layoff, entitling affected employees to notice and bumping rights.

The Divisional Court applied the reasonableness standard of review and dismissed the applications, finding that the arbitrators' interpretation of the collective agreements was justified, transparent, intelligible, and within the range of acceptable outcomes.

The moving party sought leave to appeal a decision of the Ontario Municipal Board that excluded his lands from the expansion of the urban boundary of the City of Ottawa.

He argued the Board erred in law by imposing an additional noise study condition, accepting the City's noise expert evidence, and awarding zero points for distance to a mixed-use centre.

The Divisional Court dismissed the motion for leave to appeal, finding that the Board's determinations were findings of fact or mixed fact and law, and there was no reason to doubt the correctness or reasonableness of the Board's decision.

The appellants/applicants sought to appeal and judicially review an interlocutory decision of the Ontario Securities Commission regarding the composition of a panel for a sanctions hearing.

The Divisional Court dismissed the appeal for lack of jurisdiction under s. 9(1) of the Securities Act, which only permits appeals from final decisions.

The application for judicial review was quashed as premature, as the procedural fairness and jurisdictional issues could be raised after the final decision.

The appellants appealed a Master's decision dismissing their motion to amend their statement of claim to add a claim for knowing assistance against the respondent law firm and lawyer.

The Master had found the proposed claim was statute-barred under the Limitations Act, 2002, as the material facts were discoverable more than two years prior to the motion.

The Divisional Court upheld the Master's decision, finding no error of law in the application of the test for knowing assistance and no palpable and overriding error in the Master's factual findings regarding discoverability.

The applicant union sought judicial review of an arbitration award that held the union was estopped from proceeding with a grievance regarding the contracting out of a position.

The arbitrator had found that the union's conduct led the company to rely on a settlement to its detriment.

The Divisional Court found the arbitrator's findings on estoppel were inconsistent with his earlier factual findings that the company's representative had merely made an assumption about the union's intentions.

The court concluded the arbitrator's decision was unreasonable, quashed the award, and remitted the grievance to a different arbitrator.

The defendant dentist sought leave to appeal the dismissal of his motion for summary judgment, which was based on the expiry of the limitation period.

The plaintiff argued that although he initially discovered the claim for dental malpractice, the defendant's subsequent assurances that the work was competent and the problems were due to poor hygiene negated that discovery.

The Divisional Court dismissed the motion for leave to appeal, agreeing with the motions judge that a trial was necessary to fully appreciate whether the defendant's actions delayed the commencement of the limitation period.

The Ontario Securities Commission brought a motion for security for costs of an appeal filed by the appellants.

The appellants had previously been found to have perpetrated a fraud on investors and were ordered to pay investigation and hearing costs, which remained unpaid.

The court found good reason to believe the appeal was frivolous and vexatious, as the appellants had declined to participate in the merits hearing.

Furthermore, the court found the appellants no longer had assets in Ontario.

The motion was granted, and the appellants were ordered to post $20,000 as security for costs.

The appellant appealed a Small Claims Court judgment regarding a contract for the supply and installation of doors and windows.

The appellant had refused to pay the balance owing, claiming the products were not Energy Star rated and that damage was caused during installation.

The deputy judge awarded the respondent the balance owing but set off an amount for damages.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the deputy judge's factual findings that the products were Energy Star rated, despite missing stickers, and that the damages awarded were appropriate.

The appellant appealed a Licence Appeal Tribunal decision that directed the appellant not to carry out a proposal to suspend the registrations of a motor vehicle dealership and its salespersons.

The appellant argued the Tribunal's decision was unreasonable given the dealership's failure to provide adequate financial records and a salesperson's breach of registration conditions.

The Divisional Court dismissed the appeal, finding the Tribunal applied the correct legal principles and reached a reasonable conclusion based on the evidence, including expert accounting testimony that the dealership could reasonably be expected to carry on business in a financially responsible manner.

The applicant sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB), which affirmed a decision by the Complaints Committee of the College of Physicians and Surgeons of Ontario to take no further action regarding her complaints against two doctors.

The complaints related to a spinal anaesthetic administered in 1994 and subsequent care.

The Divisional Court found HPARB's decision reasonable, noting that the investigation was adequate and the treatment provided was within professional expectations.

The application for judicial review was dismissed.

Following the dismissal of the appellant's appeal, the court received written submissions on costs.

The parties presented correspondence indicating their agreement on a costs award of $500 to reimburse the self-represented respondent for her out-of-pocket expenses.

The court found the agreed amount reasonable and ordered the appellant to pay $500 in costs.

The appellant property owner appealed a Small Claims Court judgment finding it liable for injuries sustained by the respondent pedestrian who tripped over a double asphalt curb in a poorly lit parking lot.

The appellant argued the respondent was a trespasser who willingly assumed the risks of crossing the lot.

The Divisional Court dismissed the appeal, finding the trial judge made no palpable and overriding error in concluding that a single sign restricting unauthorized vehicles did not effectively bar pedestrians, and that the respondent had not willingly assumed the risks under the Occupiers' Liability Act.

The respondent Workplace Safety and Insurance Appeals Tribunal brought a preliminary motion to dismiss the applicant's application for judicial review for delay.

The applicant sought to review a decision from December 2000, having applied for reconsideration six times until November 2007, and commenced the judicial review in January 2011.

The Divisional Court applied the three-part test for delay and granted the motion, finding extreme delay, a vague explanation, and real possibility of prejudice to the Tribunal's process.

The appellant, the mayor of Toronto, moved for a stay of a judgment removing him from office for violating the Municipal Conflict of Interest Act, pending his appeal.

The court applied the RJR-MacDonald test and found there was a serious issue to be tried, the appellant would suffer irreparable harm if removed before the appeal, and the balance of convenience favoured a short stay.

The respondent conceded the stay was appropriate given the expedited appeal schedule.

The motion for a stay was granted.

The applicant sought an adjournment of its application for judicial review to develop new evidence.

The Divisional Court addressed preliminary issues and exercised its discretion under the Judicial Review Procedure Act to decline to hear the application.

The court found the matter was not a review of a quasi-judicial decision, primarily concerned commercial interests, would require the court to perform a trial function, and that the applicant lacked standing.

The application was quashed without a determination on the merits.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her application, which alleged that the Ontario Sales Tax Transition Benefit discriminated on the basis of marital and family status.

The Tribunal had found it lacked jurisdiction because the benefit was an integral part of taxation and thus excluded from the definition of 'services' under section 10(1) of the Human Rights Code.

The Divisional Court dismissed the application, finding no reasonable apprehension of bias in the Tribunal's reconsideration process and concluding that the Tribunal's interpretation of the Code was reasonable.

The plaintiff was involved in a motor vehicle accident and sued the driver who rear-ended her, as well as the municipality and its bus driver.

Following discoveries, the rear-ending driver admitted liability and the parties agreed to dismiss the action against the municipality and its driver without costs.

Two years later, the municipality brought a motion seeking costs against the co-defendant and the plaintiff.

The court dismissed the municipality's motion, finding it was reasonable for the co-defendant to wait until after discoveries to admit full liability.

The court awarded costs to the plaintiff for having to respond to the unnecessary motion.