ODC 2013

The applicant school boards, as Schedule 2 employers, sought judicial review of the WSIB's refusal to disclose medical and employment information from injured workers' claim files.

The applicants sought this information to pursue subrogated claims against US Asbestos Compensation Trust Funds.

The Divisional Court dismissed the application, finding that the right of subrogation under s. 30(11) of the Workplace Safety and Insurance Act does not confer a right of access to a worker's personal information.

The Court also held that the applicants' challenge regarding the Freedom of Information and Protection of Privacy Act was premature, as they had an adequate alternative remedy through the freedom of information request process.

Following the dismissal of the appellant's appeal, the Ontario Securities Commission sought costs.

The Divisional Court awarded the Commission costs of the appeal fixed at $20,000 on a partial indemnity basis, finding no issue of broad public interest or misconduct by staff during settlement negotiations that would warrant denying costs.

The appellant physician appealed a decision of the Discipline Committee revoking his certificate of registration for professional misconduct, including sexual abuse of a patient and conduct unbecoming a physician due to an aggressive outburst at a school concert.

The appellant argued the Committee erred by refusing to sever the sexual abuse allegation, making unreasonable credibility findings, and improperly disciplining him for off-duty conduct.

The Divisional Court dismissed the appeal, finding the Committee's decisions on severance, credibility, and off-duty conduct were reasonable and supported by the evidence.

The respondent union brought a motion to dismiss four applications for judicial review commenced by the self-represented applicant.

The applicant had failed to set any of the applications down for a hearing, resulting in delays ranging from over two to nearly five years.

The court found the delay to be unacceptable and that it caused obvious prejudice in the employment context.

The court also noted the applicant's history of abusing tribunal processes and acting as a vexatious litigant.

The motion was granted, the applications for judicial review were dismissed, and the applicant's cross-motion was dismissed.

The applicant, a nurse, sought judicial review of two decisions by the Human Rights Tribunal of Ontario regarding her complaints against her employer hospital.

The Adjudicator had found the hospital failed to accommodate her disability after October 2009 but dismissed claims of discrimination prior to that date, and awarded monetary compensation rather than reinstatement.

The Divisional Court dismissed the application, finding the Adjudicator's decisions on the merits and remedy were reasonable and supported by the evidence, and that there was no denial of procedural fairness in limiting witness testimony to individual rather than systemic claims.

The applicant school board sought judicial review of an arbitration award interpreting a collective agreement provision that prohibited assigning teachers more than three courses per semester without agreement.

The school board argued that teachers had an implied duty to act reasonably when refusing consent.

The Divisional Court dismissed the application, finding the arbitrator's conclusion that the provision granted an absolute right to withhold consent was reasonable and well within the range of acceptable outcomes.

The moving party sought leave to appeal a decision of the Ontario Municipal Board that dismissed its appeal of a Town's Official Plan Amendment without a hearing.

The Board had concluded it lacked jurisdiction under s. 17(50.1) of the Planning Act because the parts of the plan the moving party sought to modify were already in effect and were not dealt with in the Town Council's decision.

The Divisional Court found no reason to doubt the correctness of the Board's interpretation of the Planning Act or its decision to dismiss the appeal without a full hearing on the merits.

The application for leave to appeal was dismissed.

The plaintiff appealed a Master's decision refusing to set aside the Registrar's second dismissal of the action for delay.

The Master had applied the Reid factors and found the plaintiff failed to explain the delay or rebut the presumption of prejudice.

The Divisional Court allowed the appeal, finding the Master erred in law by failing to balance the delay against the overarching principle in Rule 1.04 that proceedings should be determined on their merits.

The court noted the defendant's counsel contributed to the circumstances leading to the second dismissal by failing to respond to a settlement offer as promised, and there was no evidence that a fair trial was no longer possible.

The appellant mother appealed a child protection judgment making her three children Crown wards.

She sought to introduce fresh evidence and argued the trial judge erred by admitting and relying heavily on a court-ordered parenting assessment by Dr. Lynch, while disregarding competing medical reports.

The Divisional Court dismissed the appeal, finding the fresh evidence inadmissible as it was available at trial.

The court held the trial judge made no palpable and overriding error in admitting Dr. Lynch's report under section 54 of the Child and Family Services Act, nor in preferring his evidence over the appellant's experts.

Claims of judicial bias and ineffective trial counsel were also dismissed.

The employer appealed a Small Claims Court judgment awarding the plaintiff $25,000 for wrongful dismissal.

The plaintiff, a casino dealer, was terminated after an altercation with a co-worker where he used profanity, followed by insubordination during the investigative suspension.

The Divisional Court allowed the appeal and ordered a new trial on liability, finding that the trial judge failed to apply the McKinley proportionality test and misapprehended material evidence regarding the plaintiff's prior disciplinary history.

The court upheld the trial judge's assessment of damages at eight months' notice.

The appellant appealed a decision of the Criminal Injuries Compensation Board awarding him $1,000 for injuries sustained in a bar fight.

The Board had reduced the compensation under s. 17(1) of the Compensation for Victims of Crime Act due to the appellant's criminal lifestyle, and under s. 17(2) for his failure to cooperate with police.

The Divisional Court allowed the appeal in part, finding the Board erred in law by applying s. 17(1) without establishing a nexus between the appellant's conduct and his injuries.

The matter was remitted to the Board to reconsider the compensation amount based solely on the s. 17(2) finding.

The applicant requested an adjournment of four motions brought by the respondent to dismiss his applications for judicial review for delay.

The applicant claimed he was unavailable and unable to prepare due to university obligations and a need to clarify opposing counsel's instructions.

The court dismissed the adjournment request, finding the applicant had been given every reasonable opportunity to schedule the hearing and had used delay tactics, noting he was nonetheless able to prepare a cross-motion and submissions.

The appellant mining company appealed an interim injunction that halted its exploration activities and required consultation with the respondent First Nation.

Prior to the appeal, the Mining Amendment Act, 2009 came into force, establishing a new legislative regime for exploration plans and permits involving Aboriginal interests.

The Divisional Court declined to hear the appeal, finding it moot because the rights and obligations of the parties now rested on the new statutory foundation, rendering the propriety of the original injunction an academic exercise.

The applicant college sought judicial review of an arbitration award that allowed two individual grievances, finding that two sessional employees had worked enough 'full months' to qualify for a rollover to probationary regular employees.

The Divisional Court found the arbitration board's reasons to be unintelligible and incomprehensible, failing the minimum requirements for deference.

The court quashed the award regarding the individual grievances and remitted them to a newly constituted Board of Arbitration.

The applicant school board sought judicial review of a labour arbitration award that reinstated a teacher who had been dismissed for alleged misconduct involving students.

The board argued the arbitrator applied an incorrectly high standard of proof, drew an unreasonable adverse inference, and improperly excluded similar fact evidence.

The Divisional Court majority dismissed the application, finding that although the arbitrator misstated the law by referencing an intermediate standard of proof, a reading of the award as a whole demonstrated he actually applied the correct civil standard of a balance of probabilities.

The majority also found the arbitrator's treatment of the adverse inference and similar fact evidence was reasonable.

The dissenting judge would have allowed the application, concluding the arbitrator's misstatement of the standard of proof was a fatal error of law.

The tenant appellants appealed a Landlord and Tenant Board decision terminating their tenancy and awarding $20,000 in damages to the landlord following a fire.

The appellants argued errors of law regarding the cause of the fire, the validity of the N5 Form, and the damages award.

The Divisional Court found no errors of law regarding the fire's cause or the N5 Form, as these were factual findings.

While the Board may have erred by failing to consider the tenants' repair efforts and not ruling on a roofer's estimate, the Court found ample evidence supported the conclusion that damages exceeded $20,000.

The appeal was dismissed.

The applicant sought leave to appeal the dismissal of her contempt motion regarding unpaid child support.

The motion judge had dismissed the contempt motion for lack of jurisdiction, as it related to the non-payment of money.

The Divisional Court dismissed the application for leave to appeal, finding that the dismissal of a contempt motion is a final order, not an interlocutory one.

Consequently, the court lacked jurisdiction to grant leave under section 19(1)(b) of the Courts of Justice Act.

The appellants appealed an order dismissing their motion to discharge a certificate of pending litigation registered against their residential property.

The respondents had obtained the certificate in the context of an oppression remedy claim involving a corporate dispute.

The Divisional Court allowed the appeal and discharged the certificate, finding that the motions judge erred in law by applying a broad equitable discretion instead of determining whether there was a reasonable claim to an interest in land.

The court concluded that the pleadings did not demonstrate a reasonable claim to an interest in the land, as the claims were for damages and corporate remedies, not for an interest in the property itself.

The applicant hospital sought judicial review of an arbitration award which found it had violated the Collective Agreement by changing a registered nurse's status from full-time to part-time.

To accommodate her disability, the nurse worked half her hours in her previous bargaining unit position and half in a non-bargaining unit administrative position.

The Divisional Court dismissed the application, holding that the Arbitrator did not exceed his jurisdiction and that his interpretation of the Collective Agreement, in light of the employer's duty to accommodate, was reasonable.

The appellant appealed an order requiring the defendants' lawyers to pay a costs award to his former solicitor, Mr. Khan, and creating a solicitor's lien.

The Divisional Court allowed the appeal, finding that the appellant was not properly served with the motion, there was no joint application for approval of the contingency fee agreement as required by the Solicitors Act, and the appellant had no opportunity to address the issues at the hearing.

The order was set aside, the lien discharged, and costs awarded to the appellant.