ODC 2012

The appellant wife appealed a trial judgment regarding child support, spousal support, unjust enrichment, and costs.

She argued the trial judge was biased, erred in apportioning child support with the biological father, improperly limited spousal support to 9 years despite her disability, and wrongly dismissed her constructive trust claim.

The Divisional Court dismissed the appeal on all grounds, finding no error in the trial judge's exercise of discretion, needs and means analysis, or application of the test for unjust enrichment.

The appellant insurer appealed a motion judge's decision dismissing its motion for summary judgment.

The respondent had received disability benefits after an accident but returned to work full-time for over six months before going off work again following an MRI.

The insurer denied the resumption of benefits based on the 'Recurrent Disability' clause in the policy.

The Divisional Court allowed the appeal, finding the policy language clear and unambiguous, and held that the motion judge erred in law by concluding a trial was necessary to interpret the policy in light of the MRI.

Summary judgment was granted dismissing the action.

Four appellants appealed the dismissal of their Small Claims Court motions for judgment based on alleged settlements.

The deputy judge had previously set aside default judgments against the respondents and found that no settlements had been concluded.

When the appellants later brought motions to enforce the alleged settlements, the deputy judge dismissed them on the basis of res judicata.

The Divisional Court upheld the deputy judge's findings, concluding there was no conflict of interest and that the issue of settlement was res judicata as it had been squarely raised and decided in the prior motion.

The applicant sought judicial review of an arbitrator's decision.

At the hearing, the applicant attempted to raise new arguments and issues that were not raised before the arbitrator.

Citing the Supreme Court of Canada's decision in Alberta Teachers' Association, the Divisional Court refused to consider the new issues, noting the prejudice to the respondent and the loss of the specialized tribunal's views.

The court concluded it lacked jurisdiction to remit the matter back to the arbitrator without consent, which the respondent refused.

The court offered the applicant the option to withdraw the application without a determination on the merits.

On consent, the application was withdrawn, and the applicant was ordered to pay $3,500 in costs to the respondent.

The appellants, plaintiffs in a certified class action alleging abuse at a residential school, appealed a motion judge's order granting the respondents leave to issue third-party claims for contribution and indemnity against the students' parents and guardians.

The appellants argued that the third-party claims were legally untenable because they had limited their claims to the several liability of the respondents.

The Divisional Court allowed the appeal, applying the Court of Appeal's decision in Taylor v. Canada, holding that where a plaintiff limits their negligence claim to damages caused solely by the defendant, there is no right to claim contribution and indemnity.

Furthermore, liability for breach of fiduciary duty is not subject to apportionment.

The order permitting the third-party claims was set aside.

The applicant, a graduate student, sought judicial review of a university disciplinary decision that resulted in a formal reprimand for harassment under the Code of Student Conduct.

He argued that he was denied procedural fairness because he was not permitted legal representation at the initial hearing before the Vice-Provost, that the decision was unreasonable, and that it violated his Charter right to freedom of expression.

The Divisional Court dismissed the application, finding that the process was fair given the context and minor sanctions, the Statutory Powers Procedure Act did not apply, the decision was reasonable, and the Charter did not apply to the university's internal disciplinary process.

The applicants, two physicians, sought judicial review of a decision by the Health Professions Appeal and Review Board to proceed with a review of a Complaints Committee decision regarding their conduct, despite the complainants having withdrawn their requests for review against the applicants.

The Board argued it retained jurisdiction to review all parties named in a multiple-member decision until the matter was completely withdrawn.

The Divisional Court held that the Board's interpretation of its jurisdiction under the Health Professions Procedural Code was unreasonable, as the statute does not confer discretionary jurisdiction to review a decision where no request is maintained.

The application was allowed and the Board's decision to proceed with the review was quashed.

The landlord appealed a Landlord and Tenant Board decision ordering it to pay the tenant $11,000 for disposed property and $3,000 for stress damages following an eviction.

The Divisional Court upheld the property damages, finding ample evidence that the landlord breached its obligation under s. 41(3) of the Residential Tenancies Act, 2006 to make the tenant's possessions available within 72 hours.

However, the court set aside the $3,000 award for stress damages, as it was not claimed by the tenant and awarding it without notice breached procedural fairness.

The applicant union sought judicial review of an arbitration award that dismissed five individual grievances concerning post-age 65 retirement benefits.

The arbitrator had upheld the employer's preliminary objection, finding that the issues had already been decided in a prior policy grievance arbitration and were barred by res judicata, issue estoppel, and abuse of process.

The union argued the arbitrator failed to address its new arguments regarding age discrimination under the Human Rights Code.

The Divisional Court dismissed the application, holding that the arbitrator's application of res judicata and abuse of process was reasonable, as the union could have raised the human rights arguments during the initial policy grievance.

The applicant employer sought judicial review of an arbitration award that allowed grievances filed by the respondent union.

The arbitrator had found that employees laid off for more than 35 weeks could concurrently elect to receive severance pay under the Employment Standards Act, 2000 and claim retirement benefits under the collective agreement.

The Divisional Court applied the reasonableness standard of review and upheld the arbitrator's decision, finding her interpretation of the collective agreement and treatment of arbitral jurisprudence to be intelligible, transparent, and justified.

The application was dismissed.

The moving party municipality sought leave to appeal a decision of the Ontario Municipal Board that approved official plan and zoning bylaw amendments permitting a mixed-use high-density development.

The municipality argued the Board failed to have regard to its new official plan, exceeded its jurisdiction regarding community benefits, and provided inadequate reasons.

The Divisional Court dismissed the motion for leave to appeal, finding that the Board's decision on the applicable official plan and height issues were matters of fact or mixed fact and law entitled to deference.

The court also held that the Board did not impose community benefits and that its reasons were adequate and met the duty of procedural fairness.

The appellant appealed a jury verdict that found him 25% liable for a motor vehicle accident and awarded him $25,000 in general damages, which was barred from recovery by the statutory deductible.

The appellant argued the verdict was unreasonable and that defence counsel made inflammatory remarks to the jury.

The Divisional Court dismissed the appeal, finding that the jury's verdict was open to them based on the evidence and credibility issues, and that defence counsel's remarks did not warrant setting aside the verdict.

The applicant, a midwife, brought a motion for an order requiring the College of Midwives of Ontario to file the complete record of proceedings relating to an Inquiries, Complaints and Reports Committee (ICRC) decision about another midwife.

The applicant had made a mandatory report about the other midwife, and the ICRC decided to take no action but made critical comments about the applicant's report.

The applicant sought the record for her application for judicial review.

The Divisional Court dismissed the motion, finding that the ICRC did not exercise a statutory power of decision with respect to the applicant, and that the College was prohibited from producing the record under the confidentiality provisions of the Regulated Health Professions Act.

The appellant owner appealed a trial judgment awarding the respondent contractor $62,983.84 for unpaid construction work.

The appellant argued the trial judge erred by refusing to allow documentary evidence for its counterclaim for lost rental income and by finding the contract was a unit price contract rather than a fixed price contract.

The Divisional Court dismissed the appeal, finding the appellant had not sought to introduce the documentary evidence at trial and the trial judge properly interpreted the contract documents.

The judgment was varied only to add post-judgment interest.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding they discriminated against the respondents, two Black men, by asking them for identification in a lawyers' lounge.

The Divisional Court quashed the Tribunal's decision, finding no evidence of differential treatment or a causal nexus to race.

The Court held that the Tribunal improperly reversed the burden of proof by requiring the applicants to provide a non-discriminatory explanation for routine identification checks without the respondents first establishing a prima facie case of discrimination.

The appellants, former agents of the respondent insurance company, appealed the dismissal of their motion for certification as a class action.

They claimed termination and severance pay under the Employment Standards Act, 2000, alleging constructive dismissal due to the employer's change in its business model.

The Divisional Court upheld the motion judge's decision, finding that the claims required highly individualized inquiries regarding the impact of the changes, reasonable notice, and mitigation, and therefore lacked commonality.

The appeal was dismissed.

The respondent, IIROC, brought a motion to quash an application for judicial review commenced by the applicants, an investment dealer and its CEO.

The applicants sought to quash a notice of hearing and other disciplinary steps taken by IIROC.

The Divisional Court granted the motion to quash, finding it plain and obvious that the application could not succeed.

The court held that it lacked jurisdiction under section 2(1) of the Judicial Review Procedure Act because IIROC's disciplinary powers arise from contract, not statute or public authority.

Furthermore, the application was premature as the issues should be determined at first instance by the IIROC Hearing Panel.

The appellant municipality appealed a decision of the Ontario Energy Board declining to review its previous decision that allowed a wind energy company to build distribution facilities on municipal road allowances.

The municipality argued the Board erred in interpreting its review power too narrowly and that the presence of an original panel member on the review panel created a reasonable apprehension of bias.

The Divisional Court dismissed the appeal, finding the Board's interpretation of its review rules was reasonable and that the participation of an original member in a reconsideration process does not raise a reasonable apprehension of bias.

The appellants appealed a Small Claims Court judgment awarding the respondent damages for deficient roofing work.

The appellants argued that the trial judge erred by making findings of fact regarding the offset of shingles without supporting evidence.

The Divisional Court agreed that there was no evidence to support those specific findings.

However, the court upheld the judgment because other evidence, particularly regarding the improper overhang of the shingles, justified the complete removal of the roof and the damages awarded.

The appeal was dismissed.

The appellant appealed a Small Claims Court decision regarding the purchase of a 1982 Pontiac Trans Am, which he alleged was misrepresented as an original vehicle from the 'Knight Rider' television program.

The appellant argued the trial judge misapprehended the evidence on misrepresentation and inducement.

The Divisional Court applied the Housen standard of review and found ample evidence supporting the trial judge's conclusion that the appellant did not rely solely on the respondent's representations and had conducted his own due diligence.

The appeal was dismissed.