ODC 2012

The federal government sought costs of $16,235.75 on a partial indemnity scale against the Barbra Schlifer Commemorative Clinic and the City of Toronto following the dismissal of their respective motions for leave to appeal and leave to intervene regarding changes to the firearms registry.

The court declined to award costs against the City of Toronto, noting the usual rule that intervenors are neither granted nor awarded costs and that the City acted in good faith.

The court also declined to award costs against the Clinic, recognizing it as a non-profit organization that advanced a claim in the public interest with a genuine interest in the issues in dispute.

The appellant appealed a Small Claims Court decision dismissing his negligence and breach of contract claim against a home inspector.

The appellant alleged the inspector failed to identify wood rot during a pre-purchase visual inspection of a cottage.

The trial judge dismissed the claim, finding the appellant failed to prove the standard of care or a breach thereof, noting the absence of expert evidence.

The Divisional Court dismissed the appeal, holding that the trial judge's findings were reasonable and supported by the evidence, particularly the inspector's testimony that the rot was concealed and not observable during the initial visual inspection.

The appellant appealed a Small Claims Court judgment awarding the respondent contractor the balance owing for home renovations.

The appellant argued the contract was illegal and unenforceable because the respondent did not hold a building renovator's licence under the Toronto Municipal Code.

The Divisional Court dismissed the appeal, finding that the trial judge made no palpable and overriding error in concluding the appellant failed to prove the nature of the work required a licence.

The applicant sought judicial review of two decisions by the Office of the Independent Police Review Director.

The Director had screened out a complaint regarding seized funds and confirmed a decision by the Hamilton Police Service not to proceed to a disciplinary hearing regarding allegations of excessive force.

The Divisional Court dismissed the application, finding that it lacked jurisdiction to set aside a criminal conviction or order the return of funds on judicial review, and that the Director's decisions were reasonable.

The applicant sought judicial review of an adjudicator's decision ordering the disclosure of the base salaries of the Chief of Police and two deputies under the Municipal Freedom of Information and Protection of Privacy Act.

The adjudicator found that the compelling public interest in transparency outweighed the limited privacy interests of the affected parties, even though their total income was already disclosed under the Public Sector Salary Disclosure Act.

The Divisional Court dismissed the application, holding that the adjudicator reasonably balanced the competing interests and his decision was owed deference.

The appellant appealed a decision of the Social Benefits Tribunal, which upheld the Director's finding that he was not a 'person with a disability' under the Ontario Disability Support Program Act.

The Tribunal found the appellant had a substantial impairment but not a substantial restriction in activities of daily living.

The Divisional Court dismissed the appeal, finding no error in the Tribunal's weighing of the medical evidence and concluding that the Tribunal's reasons were adequate and reasonable.

The applicant chiropractor sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld a written caution issued by the College of Chiropractors of Ontario regarding the tone and language of a letter sent to a patient.

The applicant argued the Board failed to address a claim of reasonable apprehension of bias concerning a committee member who had co-authored an academic article critical of the applicant's treatment philosophy.

The Divisional Court dismissed the application, finding no merit to the bias claim and concluding that the Board's decision to uphold the written caution was reasonable.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision finding she discriminated against the respondents on the basis of sexual orientation and marital status by denying them a room at her bed and breakfast.

The applicant argued the room was unlicensed and therefore not a service available to the public.

The Divisional Court dismissed the application, finding the adjudicator's conclusion that the applicant withdrew the room offer upon learning of the respondents' same-sex relationship was reasonable and entitled to deference.

The applicant brought a motion to set aside the orders of a motions judge who had dismissed her motion to amend an application for judicial review and dismissed the application as moot.

The Divisional Court panel dismissed the motion, noting it was brought outside the four-day time limit and the applicant failed to identify any error of law.

The panel confirmed the motions judge had jurisdiction to hear the motion to amend pursuant to section 21(3) of the Courts of Justice Act.

The appellants appealed a decision finding that premises occupied by the Hospital for Sick Children Foundation were not exempt from municipal taxation.

The Divisional Court upheld the application judge's findings that the Foundation was a tenant under the Assessment Act and that there was no shared patrimony between the Hospital and the Foundation that would extend the hospital's tax exemption to the Foundation.

The appeal was dismissed.

The defendants sought leave to appeal an order lifting a stay of the plaintiff's constructive dismissal action.

The defendants argued the action was barred because the Public Hospitals Act provides a comprehensive code for disputes over hospital privileges.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the motion judge's conclusion that the hospital failed to demonstrate the decision to substantially alter the plaintiff's privileges was made pursuant to the Act or hospital by-laws.

The appellant appealed a decision of the Criminal Injuries Compensation Board denying him compensation for injuries sustained in an assault.

The Board found the assault was directly related to his activities as a drug trafficker and his injury was a foreseeable consequence.

The Divisional Court dismissed the appeal, finding no error of law in the Board's application of proportionality principles or its admission of hearsay evidence under the Statutory Powers Procedure Act.

The applicant, a public interest group opposing the use of diesel trains on the air rail link, brought a motion for leave to file an affidavit after completing cross-examinations.

The affidavit sought to explain the applicant's delay in bringing its application for judicial review.

The court applied the four-factor test for granting leave under Rule 39.02(2) and found that the evidence was relevant, responsive to cross-examination, would not cause non-compensable prejudice, and had a reasonably adequate explanation for its late filing.

Leave was granted to file the affidavit, subject to the exclusion of several irrelevant paragraphs.

Correctional Service of Canada brought an urgent motion to stay a ruling by the Coroner presiding over the Ashley Smith inquest.

The Coroner had dismissed CSC's motion for a sealing order regarding confidential documents and videos.

Applying the RJR Macdonald test, the Divisional Court found that CSC failed to demonstrate a serious issue to be tried or irreparable harm, noting that much of the information was already public and the assertions of harm were speculative.

The motion for a stay was dismissed with costs.

The applicant school board sought judicial review of an arbitrator's decisions allowing a union grievance regarding the calculation of instructional minutes under a collective agreement.

The dispute centered on whether 'early bells' at certain schools required students to enter before the published start time, thereby exceeding the 300-minute instructional day cap.

The Divisional Court quashed the arbitrator's decisions, finding that the arbitrator fundamentally misapprehended the nature of the grievance and the evidence, and unreasonably awarded compensation without proof that teachers worked additional minutes or performed different duties.

The matter was remitted to a different arbitrator.

The moving party sought leave to appeal an interlocutory order that had dismissed a previous motion for leave to appeal.

The previous motion was dismissed due to the moving party's failure to pay costs and comply with prior procedural orders.

The court dismissed the current motion, finding that the previous judge properly exercised discretion in dismissing the motion based on procedural default and non-payment of costs.

The court noted the moving party lacked standing to appeal interlocutory orders until complying with or varying the prior orders.

The appellant seller appealed a trial judgment awarding the respondent buyers $25,000 in damages for misrepresentation.

The seller had answered 'no' to a question about flooding on a Seller Property Information Statement, despite knowing of a severe water accumulation problem in the backyard.

The Divisional Court upheld the trial judge's findings that the misrepresentation was fraudulent or negligent, that the defect was latent, and that the 'entire agreement' clause did not exclude liability because the SPIS was incorporated into the agreement.

The appeal was dismissed.

The defendants, Via Rail and GEXR, sought leave to appeal an order that permitted the plaintiffs to add GEXR as a defendant after the presumptive limitation period had expired.

The motions judge had found that the plaintiffs exercised due diligence and could not have reasonably discovered GEXR's involvement earlier.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's decision on discoverability, prejudice, or costs, and noting the decision did not raise matters of general public importance.

The moving party sought leave to appeal a decision denying him leave to appeal an interlocutory order.

The Court of Appeal had ordered the appeal to be heard by a three-judge panel of the Divisional Court.

The Divisional Court panel held that it lacked jurisdiction to hear the matter as a panel appeal, noting that the appropriate route is to seek leave to appeal from a single judge of the Superior Court of Justice.

With the consent of the parties, the matter was converted to a motion for leave to appeal to be determined by one member of the panel sitting as a Superior Court judge.

Following an application for judicial review involving the interpretation of the Pay Equity Act and the Human Rights Code, the successful respondent sought costs of $47,506.45 on a partial indemnity basis.

The applicant argued for a lower quantum of $10,000 based on expectations in the labour relations community.

The Divisional Court found the respondent's request exceeded reasonable expectations but acknowledged the importance of the case, awarding costs to the respondent in the amount of $20,000 inclusive of HST and disbursements.