ODC 2013

The applicant union sought judicial review of an arbitrator's decision upholding an employee's termination for failing to maintain equipment and falsifying records.

The union argued it was denied procedural fairness because the arbitrator based the decision on willful neglect rather than deliberate sabotage.

The Divisional Court dismissed the application, finding that the employer had clearly argued willful neglect before the arbitrator and the union had ample opportunity to respond.

The applicant employee sought judicial review of an arbitration award that dismissed his grievance regarding his termination for cause.

The respondent union and employer brought a motion to quash the application on the basis that the employee lacked standing.

The Divisional Court granted the motion to quash, finding that the union was the exclusive bargaining agent and the employee had no independent right to seek judicial review.

The court rejected the employee's argument that he was denied natural justice due to the lack of an interpreter at the arbitration, noting that he was fluent in English and that any complaint regarding the union's representation should have been brought before the Ontario Labour Relations Board as a breach of the duty of fair representation.

The appellants appealed the dismissal of an unopposed motion for summary judgment.

The Divisional Court found that the facts put forward by the plaintiffs entitled them to the relief claimed, and the defendants did not contest those facts or oppose the motion.

Finding no genuine issue requiring a trial, the court granted summary judgment and awarded costs for the motion, leave to appeal, and the appeal.

The moving party sought leave to appeal a decision dismissing its motion for summary judgment.

The motion judge had dismissed the summary judgment motion due to the voluminous record, contradictory evidence, and the need for viva voce evidence, though he made obiter comments regarding a duty of fairness.

The Divisional Court refused leave to appeal, finding that the motion judge's obiter comments did not constitute a conflicting decision under Rule 62.02(4)(a) and that there was no reason to doubt the correctness of the decision that the case was unsuitable for summary judgment under Rule 62.02(4)(b).

The interveners, H20 Power Limited Partnership and Resolute FP Canada Inc., were granted leave to intervene on restrictive terms.

Both the interveners and the applicants sought costs against each other for the motion.

The court found that success was divided, as neither party achieved their primary position.

Applying the general rule that interveners are not awarded costs and costs are not awarded against them, the court made no order as to costs.

The City of Toronto brought a stated case from the Assessment Review Board to determine whether the Municipal Property Assessment Corporation (MPAC) or the Assessment Review Board (ARB) has the jurisdiction to alter a property's current value when issuing an omitted or supplementary assessment to change its tax status from exempt to taxable.

The Divisional Court held that neither MPAC nor the ARB has the power to change the current value of a property in these circumstances unless there has been a physical change to the property.

The power to issue omitted or supplementary assessments is limited to reflecting the change in tax status.

The appellant appealed a motion judge's refusal to terminate his spousal support obligation following his retirement.

The appellant argued that $600,000 in dividends he received from a family corporation should have been treated as a return of capital rather than income, and that the motion judge demonstrated bias by comparing him to a 'Wall Street businessman'.

The Divisional Court dismissed the appeal, finding no error in treating the dividends as income for support purposes and concluding the judge's comments merely illustrated the different tax treatment of dividend income.

The applicant players' association brought an urgent application for judicial review of an arbitrator's decision declaring himself functus officio.

The arbitrator had refused to make a decision in accordance with the court's earlier reasons quashing his previous decision regarding a player's contract option.

The court granted the application, abridged the time for service, declared the arbitrator was not functus, and remitted the matter back to him to render a decision on the basis that the respondent club did not validly exercise the option to require the player to play a third year.

The appellant appealed a Small Claims Court decision finding him jointly and severally liable for a corporate debt owed to the respondent.

The trial judge had imposed personal liability on the appellant because he signed a false certificate under the Bulk Sales Act during the sale of the corporation's business.

The Divisional Court allowed the appeal, finding that the trial judge erred in law.

The Bulk Sales Act imposes liability on the buyer, not the seller's officers, for non-compliance, and there was no evidence to support a finding of unjust enrichment or grounds to pierce the corporate veil.

The finding of personal liability was set aside.

The appellants appealed a Master's order declaring their construction lien expired for being registered more than 45 days after the last date of work.

The appellants argued that section 11 of the Limitations Act, 2002 extended the time limit for registration due to ongoing mediation efforts.

The Divisional Court dismissed the appeal, holding that a construction lien is not a 'claim pursued in court proceedings' under the Limitations Act, and applying section 11 would conflict with the complete code and policy objectives of the Construction Lien Act.

The appellant appealed a Small Claims Court decision ordering him to return a $10,000 deposit to the respondent following a failed business purchase.

The respondent had terminated the transaction after discovering the actual lease rent was higher than represented.

The Divisional Court dismissed the appeal, finding the formal Purchase Agreement superseded any prior non-refundable terms and gave the respondent an absolute right to terminate upon reviewing the lease.

The court also rejected the appellant's argument that he was unfairly denied an adjournment at trial.

The applicant union sought judicial review of an arbitrator's award upholding the respondent hospital's method for calculating Early Retirement Allowances and Voluntary Exit options for part-time employees.

The union argued the hospital's approach, which prorated both years of service and salary, produced absurd results and penalized part-time employees compared to full-time employees.

The Divisional Court dismissed the application, finding the arbitrator's interpretation of the collective agreement was reasonable and within the range of acceptable outcomes, as the arbitrator was not required to assume part-time employees must be treated identically to full-time employees under a different agreement.

The defendants sought leave to appeal a trial judge's order of no costs, which was made after a 12-day jury trial where the plaintiff recovered no damages due to the statutory deductible and threshold motion.

The trial judge had relied on the plaintiff's impecuniosity to make the no costs order.

The Divisional Court dismissed the motion for leave to appeal, finding no strong grounds to believe the trial judge made an error in principle in exercising his discretion.

The appellant brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order dismissing its appeal for delay.

The underlying case involved a Small Claims Court award for wrongful dismissal.

The Divisional Court dismissed the motion, finding it was brought out of time without a motion to extend, lacked evidentiary support explaining the delay, and showed no apparent merit to the appeal.

The landlord appealed an order of the Landlord and Tenant Board finding that he gave a notice of termination for personal use in bad faith, and a review order refusing to admit new evidence regarding the tenant's damages.

The Divisional Court upheld the finding of bad faith, concluding there was a reasonable basis in the evidence for the Member's decision.

However, the Court found the Reviewing Member erred in excluding new evidence about the tenant vacating her new premises, as the evidence was not reasonably discoverable prior to the hearing.

The appeal was allowed in part, and the issue of damages was remitted to a differently constituted panel.

The applicant hospital sought judicial review of an arbitrator's decision regarding the calculation of an employee's long-term disability benefits under a collective agreement.

The hospital argued that the employee's benefits should be reduced by the amount of a disability pension she could have received had she terminated her employment.

The arbitrator found that the pension was not 'available' because electing it would require the employee to terminate her employment and forfeit significant health care benefits.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation of the collective agreement was reasonable and entitled to deference.

The applicant bank sought leave to appeal an order dismissing its unopposed motion for summary judgment against the respondent guarantor for fraud.

The applicant alleged the respondent falsely represented corporate accounts receivable to obtain a line of credit.

The Divisional Court found good reason to doubt the correctness of the motion judge's decision but dismissed the motion for leave to appeal because the case was highly fact-specific and did not raise matters of general importance.

The court noted the applicant could simply proceed to an unopposed trial.

The defendant brought a motion to extend the time to appeal a Small Claims Court default judgment.

The court found that the defendant provided no reasonable explanation for the delay and failed to present any evidence of a defence to the claim.

The motion was dismissed, and costs were awarded to the plaintiff.

Following the release of the court's reasons on an appeal, counsel advised the judge of an error regarding the agreed-upon costs.

The court issued a correcting endorsement to amend the costs award payable to the successful appellant from $15,000 to the agreed amount of $5,000.

The appellants appealed a decision dismissing their motion to strike a portion of the respondent's amended claim seeking disgorgement of profits based on unjust enrichment.

The respondent, a generic drug manufacturer, argued it had an independent cause of action outside the Patented Medicines (Notice of Compliance) Regulations due to the invalidity of the appellants' patent and alleged false representations.

The Divisional Court allowed the appeal, holding that the Patent Regulations constitute a complete code and leave no room for stand-alone equitable remedies like unjust enrichment in these circumstances.

The claim was struck for disclosing no reasonable cause of action.