ODC 2012

The Ontario Energy Board brought a motion to quash two summonses issued by the appellant to a Board member and the Board's external counsel.

The appellant sought to examine them in aid of a motion to adduce fresh evidence on appeal, alleging a reasonable apprehension of bias because the external counsel's firm had represented the appellant's competitors and was a member of an industry association.

The Divisional Court quashed both summonses, finding that the proposed lines of inquiry were irrelevant to the objective test for a reasonable apprehension of bias.

The court also analyzed testimonial immunity under s. 10 of the Ontario Energy Board Act, 1998, deliberative secrecy, and solicitor-client privilege, finding multiple additional grounds to quash the Board member's summons and partial grounds to quash the external counsel's summons.

The applicant sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB) confirming a decision to take no further action on his complaint against a psychiatrist.

The applicant argued that HPARB should have held an oral hearing rather than a written review, alleging a failure to accommodate his hearing impairment.

The Divisional Court dismissed the application, finding that HPARB reasonably exercised its discretion to proceed in writing after attempts to accommodate the applicant's hearing impairment at an oral hearing were unsuccessful, and the applicant failed to show good reason why a written hearing was inappropriate.

The City of Kawartha Lakes appealed a decision of the Environmental Review Tribunal upholding a Ministry of the Environment order requiring the City to remediate environmental contamination on its property.

The contamination was caused by a furnace oil leak from an adjacent private property.

The City argued it was an innocent owner and the Tribunal erred by excluding evidence regarding who was at fault for the spill.

The Divisional Court dismissed the appeal, finding that the Tribunal's decision to exclude fault evidence was reasonable, as the Environmental Protection Act's primary purpose is environmental protection, and fault-finding is better suited for civil courts.

The applicant pharmacy sought judicial review of a decision by the Executive Officer terminating its ability to bill the public drug program due to alleged fraudulent and unsubstantiated claims.

The applicant argued it was denied procedural fairness because it was not given sufficient time to provide evidence addressing the discrepancies.

The Divisional Court held that, given the severe economic consequences to the applicant's business, the duty of fairness required granting the applicant a short additional period to submit supporting evidence.

The application was allowed in part, and the applicant was granted an extension to make further submissions while a stay of the termination remained in place.

The appellant, a lawyer, appealed a decision of the Law Society Appeal Panel upholding a finding of professional misconduct and a six-month suspension.

The misconduct arose from the appellant's breach of a bail condition prohibiting him from practicing criminal law without supervision.

The Divisional Court dismissed the appeal, finding no error in the Law Society's jurisdiction, the application of the civil standard of proof, the assessment of credibility, or the rejection of arguments based on res judicata and abuse of process.

The court also found no reasonable apprehension of bias.

The appeal was dismissed with no order as to costs.

Following the dismissal of the appellant's appeal, the respondent law firm sought costs on a substantial indemnity basis of over $29,000.

The appellant, who was self-represented, sought costs of $3,000 to $4,000 despite being unsuccessful.

The Divisional Court awarded costs to the respondent but significantly reduced the quantum to $2,000.

The court noted that the respondent's counsel invested excessive time, sought an unjustifiably high rate, and had previously been criticized by other judges for unprofessional conduct and impaired judgment in acting for his own firm.

Following a successful appeal by the municipality and elected candidates that upheld the validity of a municipal election, the court determined the costs of the proceedings.

The court held that the unsuccessful challenging candidates were not entitled to have their costs paid by the municipality, despite claiming public interest litigant status.

However, the court ordered the municipality to pay the partial indemnity costs of the successful elected candidates, recognizing they were blameless parties drawn into expensive litigation due to mistakes made by municipal election officials.

The court also ordered one of the challenging candidates to pay the costs of a motion he unreasonably opposed.

The applicant insurer sought judicial review of a Financial Services Commission of Ontario decision finding that the respondent was injured in an 'accident' under the Statutory Accident Benefits Schedule.

The respondent was injured while attempting a headstand on a 'stripper pole' inside a mobile party bus.

The Divisional Court applied a reasonableness standard of review and upheld the decision, finding it was reasonably open to the decision-maker to conclude that, given the specific nature of the vehicle, the headstand constituted an ordinary use of the vehicle and did not break the chain of causation.

The application for judicial review was dismissed.

The defendant landlord sought leave to appeal an interlocutory order that dismissed its motion for security for costs, particulars, and a further and better Affidavit of Documents.

The motions judge had found the corporate plaintiff and its principal to be genuinely impecunious, making an order for security for costs unjust.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's application of the Rules of Civil Procedure, particularly regarding proportionality and the court's discretion to dispense with strict compliance.

The appellant appealed two orders from the Small Claims Court: one dismissing his action and another dismissing his motion for a new trial.

The appellant, who was self-represented, argued that the trial judge's conduct created a reasonable apprehension of bias because the judge interrupted him and required him to give evidence orally rather than reading from a prepared script.

The Divisional Court dismissed the appeals, finding that the motions judge correctly applied the test for a new trial and that the trial judge's conduct in managing the trial process did not create a reasonable apprehension of bias.

Daimler appealed a decision granting priority to 417 Truck Centre's unregistered non-possessory lien and storage lien over Daimler's registered security interest in a truck.

The Divisional Court dismissed the appeal, finding that Daimler was not a third party who acquired an interest after the non-possessory lien arose, and had prior notice of the lien before paying funds into court.

The court also upheld the storage lien, finding an implied understanding that storage would be charged and that the daily rate was reasonable.

The appellant appealed a Small Claims Court decision ordering him to return a partnership investment and pay damages for work performed by the respondent.

The trial judge had found that the appellant made a fraudulent misrepresentation inducing the respondent to sign a partnership agreement for a roofing business, entitling the respondent to recision.

On appeal, the Divisional Court found no errors of law, noting the standard of review for questions of law is correctness.

The court afforded deference to the trial judge's factual findings and credibility assessments, concluding they were reasonable.

The appeal was dismissed.

The applicant lawyer, facing a discipline hearing regarding alleged participation in mortgage fraud, sought a stay of the hearing pending his application for judicial review of a Law Society Hearing Panel's refusal to order further disclosure.

The Divisional Court dismissed the motion for a stay, finding that the judicial review application was premature as the tribunal's refusal to order production of documents did not go to its jurisdiction.

The court also found that the applicant would not suffer irreparable harm and that the balance of convenience favoured not staying the discipline proceedings to avoid fragmenting the administrative process.

The Registrar of the Alcohol and Gaming Commission of Ontario appealed a Board decision refusing to revoke the respondent's liquor licence.

The Registrar sought revocation because the respondent's sole officer and director was actively involved in the Hell's Angels.

The Registrar argued the Board applied the wrong legal standard under s. 6(2)(d) of the Liquor Licence Act.

The Divisional Court dismissed the appeal, finding the Board applied the correct 'reasonable grounds for belief' standard and properly assessed all pertinent factors regarding the operation of the licensed establishment.

The applicants sought leave to appeal a decision of the Ontario Municipal Board granting minor variances for a rear two-story addition to the respondents' neighbouring property.

The applicants argued that the Board failed to provide sufficient reasons regarding the third test for a minor variance, specifically whether the side yard variances maintained the general intent and purpose of the zoning bylaw.

The Divisional Court agreed, finding that the Board's failure to articulate its analysis on this mandated requirement constituted a fundamental flaw and an error of law.

Leave to appeal was granted, and costs were awarded to the applicants.

The applicant sought judicial review of the Director of the Family Responsibility Office's refusal to enforce a child support order.

In 2001, the applicant had repeatedly advised the Director that the arrears were paid directly to her, leading the Director to clear the arrears.

Six years later, the applicant claimed she had been duped by the payor and asked the Director to reinstate and enforce the arrears.

The Director refused, citing a dispute over the arrears and advising the applicant to seek redress from the court.

The Divisional Court dismissed the application, finding the Director's decision reasonable as there was a real and substantial dispute over the arrears, and the Director is not mandated to investigate or resolve such disputes.

The moving party, a physician whose certificate of registration was suspended for two years followed by indefinite restrictions after a discipline committee found her incompetent following a patient's death during liposuction, brought a motion to stay the penalty order pending her appeal.

She sought to perform non-surgical cosmetic procedures in the interim.

The Divisional Court applied the RJR MacDonald test and dismissed the motion.

While the appeal raised a serious issue, the moving party failed to establish irreparable harm, as financial loss alone is insufficient.

Furthermore, the balance of convenience favoured the respondent, as the court found that allowing the moving party to perform or supervise controlled acts would pose a risk to public safety and undermine public confidence in the medical profession's regulatory process.

The plaintiff appealed a motion judge's order substituting a former employee as the discovery witness for the corporate defendant instead of its president and CEO.

The plaintiff argued the former employee was not an eligible witness under Rule 31.03(2)(a) and that he should have been granted an adjournment.

The Divisional Court dismissed the appeal, holding that the plaintiff could not raise the eligibility issue for the first time on appeal and that the motion judge did not err in refusing the adjournment.

The applicant union sought judicial review of an arbitrator's decision regarding the effective date for retroactive salary adjustments for employees newly included in the bargaining unit.

The arbitrator had ruled that compensation would run from the date an employee was found or agreed to come within the unit, rather than the date of the initial grievance.

The Divisional Court dismissed the application, finding the arbitrator's remedial decision was reasonable given the complex, multi-year dispute involving multiple unions and hundreds of disputed positions.

The appellant appealed a costs decision of the Discipline Committee of the Association of Professional Engineers of Ontario.

The Committee had dismissed a complaint regarding the appellant's election campaign material but denied his request for costs, finding the commencement of proceedings was not unwarranted.

The Divisional Court held that although the Committee erred in its view of what the Complaints Committee knew, this error did not render the decision unreasonable, as the election material could still reasonably be viewed as crossing the line into unprofessional conduct.

The appeal was dismissed.