ODC 2012

The applicant sought judicial review of the Ontario Energy Board's Demand Side Management guidelines, arguing they were improperly adopted without a hearing and were binding on parties.

The Board, supported by intervenors, brought a motion to quash the application as moot.

The Divisional Court granted the motion to quash, finding that the guidelines were not binding, as evidenced by subsequent rate hearings where the Board departed from them and an affidavit from Board counsel.

The court declined to exercise its discretion to hear the moot application, noting the applicant could challenge the guidelines in future rate proceedings.

The employer applied for judicial review of an arbitrator's award that ordered it to repay funds to an employee.

The employee, a station collector, had erroneously credited customers' debit cards instead of debiting them, resulting in a shortage.

The arbitrator found the employee responsible for the shortage under the collective agreement but held the employer could not recover the funds because it failed to mitigate its loss.

The Divisional Court granted the application and quashed the award, finding the arbitrator's imposition of a duty to mitigate unreasonable in the context of a contractual debt and the collective agreement's clear language.

Following a hard-fought application for judicial review, the successful respondent sought costs of $57,647.20.

The applicant argued for a range of $12,000 to $14,000.

The Divisional Court found the respondent's claimed amount excessive for a one-day application, but the applicant's suggested amount too low.

The court fixed costs at $25,000 payable by the applicant to the respondent.

The appellant father appealed a final order requiring him to pay prospective and retroactive child support, arguing the motions judge erred in finding his income, providing inadequate reasons, and misapplying the tests for retroactive support and undue hardship.

The Divisional Court found no palpable and overriding error in the income determination and held the reasons were adequate.

While the motions judge conflated the 'undue hardship' test for prospective support with the 'hardship' factor for retroactive support, the Divisional Court applied the correct test and upheld the retroactive award due to the father's long history of underpayment and failure to disclose income.

The appeal was dismissed.

The appellants appealed a trial judgment resolving a deadlock in a family-owned ice cream business.

The trial judge ordered the majority shareholder to sell her shares to the minority shareholder for fair market value.

On appeal, the appellants argued the trial judge ignored the majority shareholder's reasonable expectations, her security interest in the business, and the minority shareholder's alleged misappropriation of a corporate opportunity.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or application of the law, including the conclusion that the appellants were more responsible for the deadlock.

The appellants appealed a procedural decision of the Ontario Energy Board regarding their application to declare bypass compensation provisions of the Transmission System Code ultra vires.

The Board had determined the application was not a standalone application but was linked to an earlier Leave to Construct decision, and gave the appellants three procedural options to proceed.

The Divisional Court dismissed the appeal, finding the Board's decision was interlocutory and discretionary, and raised no true question of law or jurisdiction.

The moving party sought leave to appeal an interlocutory order compelling her to undergo a further psychiatric assessment under s. 79(1) of the Substitute Decisions Act.

She had previously been found incapable and was under guardianship, but brought an application to terminate the guardianship supported by new assessments indicating she was now capable.

The responding party successfully moved for a further assessment, which the motion judge granted without reasons.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order as it may not have appropriately balanced the individual's autonomy against the state's duty to protect the vulnerable, and noting the issue was of sufficient importance to warrant appellate review.

The self-represented plaintiff brought a motion to extend the time for appealing and for leave to appeal an order that removed his former solicitor from the record and granted the solicitor a lien and costs.

The Divisional Court found that the plaintiff was denied procedural fairness at the original hearing, as he was not served with the motion materials in advance and the motions judge signed an order containing provisions not discussed during the hearing.

The court granted the extension of time and leave to appeal, noting the solicitor's contingency fee agreement did not comply with the Solicitors Act.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his discrimination complaint against the Toronto Transit Commission for being out of time.

The Tribunal found the applicant knew of the alleged discriminatory acts by 1994, despite his claim of discovering them in 2010, and thus the delay was not in good faith.

The Divisional Court dismissed the application, finding no denial of natural justice in the Tribunal's use of a written hearing for a jurisdictional issue, and holding that the Tribunal's decisions on timeliness and reconsideration were reasonable.

Following the dismissal of an application that was found to be without merit, the applicant and the respondent union both sought costs.

The Divisional Court dismissed the applicant's claim for costs, noting the usual rule that costs follow the event.

The respondent union was awarded costs fixed at $12,000, payable by the applicant.

The appellant appealed a Master's order striking his Statement of Defence for failing to fully comply with undertakings and prior court orders.

The Divisional Court applied the standard of review from Housen v. Nikolaisen, finding that the Master's decision was supported by the evidence and involved no error of law or principle.

The appellant had been given multiple warnings and opportunities to comply but failed to do so.

The appeal was dismissed with costs awarded to the respondents.

The successful plaintiff sought costs of the appeal in the amount of $5,428.74.

The defendant acknowledged the plaintiff's entitlement to costs but argued they should be fixed at $3,500.

The Divisional Court found the plaintiff's claim substantially justified and awarded costs fixed at $5,400 all-inclusive.

The plaintiffs brought a motion under s. 21(5) of the Courts of Justice Act to review an order of a single judge of the Divisional Court that required them to pay $20,000 as security for costs.

The motion was brought well past the four-day time limit prescribed by Rule 61.16(6) of the Rules of Civil Procedure.

The Divisional Court declined to extend the time for the motion, noting the plaintiffs' repeated failure to meet deadlines, the lack of evidence explaining the delay, and the prejudice to the defendant.

The motion was dismissed with costs.

The appellant appealed a decision of the Social Benefits Tribunal upholding the Director's determination that she was not a 'person with a disability' under the Ontario Disability Support Program Act.

The appellant argued the Tribunal erred in law by disregarding a new medical report from her family doctor and by distinguishing between 'ache' and 'pain'.

The Divisional Court dismissed the appeal, finding the Tribunal did not err in law in affording no weight to the medical report as it did not relate to the appellant's condition at the time of the Director's decision, and that the Tribunal's interpretation of the appellant's evidence regarding her symptoms was a matter of weighing evidence, not an error of law.

The defendants sought leave to appeal the dismissal of their summary judgment motion.

The underlying action involved a claim for $1.4 million for breach of a television series production and distribution agreement.

The summary judgment motion had been dismissed because the motions judge found that the discoverability of the claim required multiple findings of fact on conflicting evidence, which could only be achieved at trial.

The Divisional Court found no reason to doubt the correctness of the motions judge's application of the full appreciation test and dismissed the motion for leave to appeal.

Eight police officers sought judicial review of decisions by the Toronto Police Services Board allowing the Chief of Police to delay serving Notices of Hearing for public complaints arising from the G20 summit.

The respondents moved to dismiss the application for prematurity.

The Divisional Court dismissed the application, finding no exceptional circumstances to justify judicial review of an interlocutory administrative decision.

The court noted the officers had an adequate alternative remedy to raise the issue of prejudice caused by delay through an abuse of process motion before the hearing officer.

The appellant appealed a Master's order dismissing his defamation action for delay at a status hearing.

The appellant argued the delay was justified because he was waiting for criminal charges of sexual assault to be resolved, but the Master found the criminal charges related to a different incident than the one pleaded in the defamation action.

The Divisional Court dismissed the appeal, finding the Master correctly applied the law, properly rejected the appellant's excuse for delay, and reasonably found actual prejudice to the respondents.

The applicant cottagers association sought judicial review of the Minister's decision to grant a pit licence to the respondent landowner under the Aggregate Resources Act.

The licence was issued based on a municipal confirmation that the pit was a legal non-conforming use.

The Divisional Court found that the confirmation was based on misinformation, as there was no evidence the property was used as a pit prior to the relevant zoning by-laws.

The Court held the standard of review was correctness and set aside the Minister's decision, referring the matter back for reconsideration.

The maternal grandmother appealed a motions judge's decision confirming the jurisdiction of the Children's Aid Society of Ottawa to apprehend two children residing temporarily with her in Quebec.

The Divisional Court dismissed the appeal, finding that the children's habitual residence remained in Ontario and that the collaborative cross-border apprehension with Quebec authorities was a practical and legal solution.

The court confirmed the Ontario Superior Court of Justice had jurisdiction over the child protection proceedings.

The appellant appealed a child support order, challenging the imputation of rental income, retroactive support, and the imputation of income during a period of voluntary leave.

The Divisional Court upheld the decisions on rental income and retroactive support.

However, the court found a palpable and overriding error in the motions judge's conclusion that there was no evidence the appellant's leave was taken to care for his infant child.

The court allowed the appeal in part, setting aside the imputation of income for the leave period and adjusting the costs order accordingly.