ODC 2012

The applicant union sought judicial review of an arbitrator's award ordering compensatory and punitive damages against it for organizing illegal strikes.

The union argued the collective agreement limited the arbitrator to declaratory relief for employer grievances.

The Divisional Court dismissed the application, finding the arbitrator reasonably interpreted the collective agreement and the Canada Labour Code in concluding he had broad remedial authority to award damages.

The successful respondent on an appeal from the Small Claims Court sought partial indemnity costs of $15,961.25.

The appellant argued the costs were disproportionate to the $9,129.02 at issue in the appeal.

The court considered the Rule 57 factors, noting that while the monetary amount was small, the legal issues regarding priority between a perfected security interest under the PPSA and an unregistered non-possessory lien under the RSLA were complex and important to the appellant.

The court fixed costs at $9,500 plus HST.

The appellant appealed a decision of the Discipline Committee Panel of the College of Physicians and Surgeons finding him guilty of professional misconduct for allegedly sexually touching a patient thirty years earlier.

The appellant argued the Panel's reasons were conclusory and insufficient for meaningful appellate review.

The Divisional Court agreed, finding the reasons failed to demonstrate justification, transparency, and intelligibility, particularly regarding the rejection of the appellant's evidence and the treatment of inconsistencies in the complainant's evidence.

The appeal was allowed, the finding set aside, and the matter remitted for a new hearing.

The respondent successfully defended an appeal of a Small Claims Court judgment and moved for costs of the appeal and the motion, seeking $12,500.

The court noted that the amount claimed was out of proportion to the $10,000 value of the Small Claims Court case.

Applying principles of proportionality and considering the limits on costs in Small Claims Court proceedings, the court fixed the costs of the appeal and the motion at $2,500.

The defendant, Dietrich Construction Limited, sought leave to appeal an order allowing the plaintiffs to amend their Statement of Claim to include claims for sand removal dating back to 1998.

The defendant argued the motion judge erred regarding the expiration of the limitation period and the conflict between the Limitations Act, 2002 and Rule 26.01.

The Divisional Court dismissed the motion, finding no conflict in the law and that discoverability remained a factual issue for the trial judge.

The moving party husband sought leave to appeal an interim order requiring him to pay child support, carry the expenses of the matrimonial home, and list an investment property for sale.

He also sought a stay of the order pending appeal.

The court granted leave to appeal, finding reason to doubt the correctness of the order regarding the jurisdiction to order the sale of the investment property and the application of the Spousal Support Advisory Guidelines.

The court also granted a stay of the order on terms, adjusting the monthly payments pending the appeal.

The appellant appealed a Master's order refusing to set aside the administrative dismissal of her action for damages for sexual assault.

The appellant argued that because her claim involved sexual assault and was not subject to a limitation period, the Master erred by not applying a more lenient test for setting aside the dismissal.

The Divisional Court dismissed the appeal, finding that the Master correctly considered the nature of the claim as a contextual factor but properly concluded that the appellant's failure to move the action forward was unrelated to the nature of the assault, and that the respondents were entitled to expect compliance with the Rules of Civil Procedure.

The City of Toronto sought judicial review of two interim decisions by the Human Rights Tribunal of Ontario, which had rejected the City's request for early dismissal of a human rights application challenging municipal zoning by-laws regarding group homes.

The Divisional Court dismissed the application for judicial review, finding that the Tribunal's decision to defer the jurisdictional challenge until a full evidentiary record was established was reasonable.

The Court also held that the application for judicial review was premature, as there were no exceptional circumstances warranting intervention in the Tribunal's interim procedural decisions.

The applicants sought leave to appeal a costs order made by a motions judge following a consent order settling an estate administration dispute.

The motions judge had fixed costs based on written submissions, awarding the applicants $20,000 and the respondents $15,000.

The applicants argued the judge erred by not awarding full indemnity costs and by not reviewing the entire court file.

The Divisional Court dismissed the motion for leave, finding no error in principle in the motions judge's exercise of discretion and no conflicting decisions or matters of general importance to justify leave.

The Ontario Human Rights Commission sought judicial review of a Human Rights Tribunal of Ontario decision.

The Tribunal had found that an employee was subjected to a poisoned work environment based on sex and was terminated contrary to the Human Rights Code.

However, the Tribunal only ordered the inoperative corporate employer to pay damages, declining to hold the individual managers and owners jointly and severally liable.

The Divisional Court held that the Tribunal's failure to provide a rational basis for not imposing personal liability on the managers, who had failed to address the poisoned environment and had terminated the employee, was unreasonable.

The matter was remitted to the Tribunal to reconsider the apportionment of joint and several liability.

The moving party sought leave to appeal a decision of the Ontario Municipal Board (OMB) which upheld a five-year moratorium on new country lot subdivisions in the City of Ottawa's Official Plan.

The OMB had found the moratorium was authorized under s. 16 of the Planning Act.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the OMB's interpretation, particularly given that s. 38 of the Planning Act specifically limits interim control by-laws prohibiting development to a maximum of two years.

The applicant, the president of the Association of Professional Engineers of Ontario, brought an application for judicial review of a decision by the Association's Council to accept the resignation of a councillor.

The councillor had submitted an unequivocal resignation via email but later attempted to retract it.

The Divisional Court dismissed the application, holding that at common law, the resignation of a director of a corporation without share capital is effective upon delivery and does not require acceptance by the corporation.

Furthermore, once delivered, the resignation cannot be withdrawn without the consent of the remaining directors.

The appellant warranty corporation appealed a Licence Appeal Tribunal decision ordering it to undertake remedial work on a new home's radiant floor heating system.

The Tribunal found the system was a major structural defect and ordered repairs estimated at $245,000.

The Divisional Court allowed the appeal, finding the Tribunal erred in law by failing to apply the $100,000 statutory cap on compensation for major structural defects under Regulation 892.

The matter was remitted to the Tribunal for a rehearing on the issue of remedy alone.

The plaintiff tenant sought an extension of time to appeal an eviction order issued by the Landlord and Tenant Board.

The tenant was approximately one month out of time to file the appeal.

The court found that the tenant was aware of the deadline and the appropriate route to appeal.

The court declined to extend the time, noting that the appeal lacked merit as it turned on findings of fact and credibility regarding the tenant's disruption of other tenants' quiet enjoyment.

The motion was dismissed with no order as to costs.

The appellants appealed a decision dismissing their application to reopen a dispute over solicitor fees.

The dispute had previously been resolved through Minutes of Settlement during an assessment proceeding under the Solicitors Act.

The Divisional Court upheld the application judge's finding that attempting to reopen the settled dispute was an abuse of process, noting that a settlement of an assessment is not itself subject to assessment.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a trial judgment finding him liable for breaching a non-competition clause in his employment contract and ordering him to repay a $20,000 non-compete payment.

The Divisional Court allowed the appeal, finding the trial judge erred in interpreting the contract.

The appellant had met the conditions for the payment by remaining employed for one year and not competing during that time.

Although the non-competition clause was enforceable and breached later, the respondent proved no damages, so the action was dismissed.

The Municipal Property Assessment Corporation (MPAC) brought a motion for leave to appeal a decision of the Assessment Review Board regarding the assessment of a Canadian Pacific Railway rail yard in Hamilton.

MPAC argued the Board erred in applying a Market Adjustment Factor (MAF) and in finding that CP was not in actual use and occupation of the portion of lands leased to Steelcare Inc. The Divisional Court dismissed the motion, finding no good reason to doubt the correctness of the Board's decision on either issue, as the Board properly applied the relevant provisions of the Assessment Act and case law.

The Divisional Court issued an addendum to its initial endorsement to correct factual errors in paragraph 4 regarding bypass compensation and stranded transmission connection facilities.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission suspending its liquor licence for 14 days for permitting drunkenness.

The appellant raised several grounds of appeal, including allegations of procedural fairness, improper admission of evidence, incorrect burden of proof, improper adverse inference, and failure to provide adequate reasons.

The Divisional Court dismissed the appeal, finding no merit to any of the grounds and concluding that the Board's reasons, while sparse, were sufficient.

The applicants sought leave to appeal an interim decision of the Assessment Review Board, which classified their properties offering extended stay accommodations as hotels under s. 17(2) of the Assessment Act.

The Divisional Court applied the test for leave to appeal, finding that while the question of law was important, there was no reason to doubt the correctness of the Board's interpretation.

The plain language of the statute clearly caught the subject properties within the definition of a hotel.

The motion for leave to appeal was dismissed.