ODC 2013

The appellant sought to adjourn its motion for leave to appeal a decision of the Ontario Municipal Board.

The appellant discovered that a witness who testified at the Board hearing had previously made a presentation to Board members, prompting the appellant to commence an application for judicial review regarding procedural fairness.

The court granted the adjournment, noting that it would be an inefficient use of court resources to hear the leave to appeal motion when the underlying decision could potentially be declared a nullity through the judicial review application.

The applicant union sought judicial review of an arbitrator's decision holding that a player was contractually obligated to play a third season for the respondent football club.

The union argued the contract was voidable because the club negotiated with an unregistered contract advisor, and that the club's exercise of the option year was unclear.

The court granted leave to hear the application as a single judge due to urgency.

The court found the arbitrator's decision not to void the contract was reasonable.

However, the court quashed the arbitrator's decision regarding the option year, finding that the letter sent to the player was confusing and did not clearly exercise the option.

The appellant appealed a decision of the Health Professions Appeal and Review Board, which confirmed the College of Nurses' refusal to issue her a certificate of registration.

The appellant had failed the mandatory registration examination four times and requested to review her examination questions and answers, which the College refused.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable as there is no discretion to register an applicant who has not passed the examination, and the College had legitimate reasons for refusing the review request.

The plaintiff appealed a Small Claims Court decision dismissing its claim for an outstanding credit card debt.

The deputy judge had ruled that the claim was not a liquidated demand and required the plaintiff to produce all credit card statements from the account's inception.

The Divisional Court allowed the appeal, holding that a credit card debt is a liquidated demand ascertainable by calculation based on the cardholder agreement.

The court further held that requiring all historical statements is unnecessary when the defendant has not defended the claim and the agreement deems the final statement accepted if uncontested.

The applicants, owners of designated physiotherapy clinics, sought judicial review to quash Regulation 138/13, which delisted their clinics and changed the funding model for physiotherapy services.

They argued the regulation was enacted in violation of a government policy requiring a 45-day consultation period, thereby breaching their legitimate expectations of procedural fairness.

The Divisional Court dismissed the application, finding that the policy did not create a clear, unambiguous, and unqualified representation, as it expressly allowed for exceptions.

Furthermore, the court noted that quashing the regulation would be futile, as the government could simply re-enact it after a formal consultation period, having already heard and rejected the applicants' views.

The Township of Muskoka Lakes brought an application for judicial review to stop the Ministry of Natural Resources from leasing Crown lands to Swift River Energy Limited for the construction of a hydro-electric facility.

The Township argued that the Ministry's decision to issue a Notice under s. 28 of the Public Lands Act prohibiting public access to the lands was unreasonable and an attempt to thwart portage and public access rights.

The Divisional Court dismissed the application, finding that the Ministry's decision was reasonable given the public safety concerns associated with the site, where two drownings had previously occurred.

The court also noted that a lease of Crown lands does not constitute a disposition under s. 65(4) of the Act.

The developer brought a motion for security for costs against a non-profit corporation seeking judicial review of a Conservation Authority decision approving a residential subdivision.

The corporation argued it was a public interest litigant and that an order for security would terminate the litigation.

The court found the corporation had insufficient assets to pay costs and rejected the public interest litigant argument, noting the litigation primarily concerned a localized neighbourhood dispute rather than a broader public interest.

The court ordered the corporation to post $20,000 as security for costs.

The appellant construction company appealed a Small Claims Court judgment awarding the respondent residents $14,700 in damages for nuisance, trespass, and negligence arising from noise and odour emitted by a temporary asphalt plant.

The Divisional Court upheld the finding of liability in nuisance, concluding the trial judge made no palpable and overriding errors in assessing the severity of the interference or the character of the neighbourhood.

The court also upheld the trial judge's decision to qualify the respondents' expert witness despite her employment with an environmental advocacy group.

However, the court allowed the appeal regarding trespass and negligence, finding that noise and odour are indirect intrusions that do not constitute trespass, and that the respondents suffered no compensable personal injury or property damage to ground a negligence claim.

The damages award remained unchanged.

Following a successful appeal where a new trial was ordered, the court determined the quantum of costs.

The court noted that while the appellants were successful, they could have achieved the same result with more judicious effort.

Costs were fixed at $5,000 inclusive of taxes and disbursements, payable following the new trial or settlement.

The respondent mother and intervener sought to transfer an appeal regarding child support for an adult child from the Divisional Court to the Court of Appeal, arguing that a Charter challenge to the Family Law Act warranted the transfer.

The Attorney General argued the Divisional Court had jurisdiction.

The court held that under the Courts of Justice Act, appeals of final orders for not more than $50,000 lie to the Divisional Court, regardless of whether a Charter issue is raised.

The court found it had no authority to transfer the matter to the Court of Appeal.

H20 Power Limited Partnership and Resolute FP Canada Inc. brought a motion for leave to intervene as added parties in an application for judicial review concerning the Crown's duty to consult and accommodate the Anishinaabe Nation regarding hydroelectric contracts.

The applicants opposed full intervention, arguing it should be limited to the issue of relief.

The court found that the proposed interveners had a direct interest in the contracts and could provide a useful contribution regarding the operation of the generating stations.

Leave to intervene was granted, subject to conditions limiting their evidence and argument to avoid duplication and delay.

The moving parties sought leave to appeal an interlocutory decision of the Ontario Municipal Board (OMB) regarding the validity of certain provisions of a City of Ottawa zoning by-law.

The OMB had found some provisions valid, some invalid, and sent others back to the City for reconsideration.

The Divisional Court dismissed the motion for leave to appeal, finding that while the issue was important and the standard of review was reasonableness, the appeal was premature because the final language of the by-law had not yet been settled by the City's reconsideration.

The applicant First Nation sought an extension of time to perfect its judicial review application challenging the provincial approval of a mine closure plan.

The applicant requested the extension to await the Supreme Court of Canada's decision on leave to appeal in a related case concerning provincial authority under Treaty 3, or the completion of scheduled mediation.

The respondent mining company opposed further delay.

The court granted the extension to the earlier of 45 days after the release of the leave decision or 45 days after the completion of the mediation, balancing the need for clarity on the legal issues with the need to avoid indefinite delay.

The unsuccessful appellant in an OMB appeal sought to be excused from paying costs, arguing he was acting as a public interest litigant.

The court rejected this argument, finding the litigation did not involve an issue of public significance extending beyond the immediate parties.

Applying the principle that costs must be fair and reasonable, the court found the respondents' requested amounts excessive and awarded $10,000 to the primary respondent and $5,000 to each of the other two respondents.

The appellant fire chief appealed an order referring a fire safety inspection dispute back to the Office of the Fire Marshal.

The original inspection order required the installation of a sprinkler system.

The Fire Marshal upheld the order but allowed the respondents to submit alternative measures to the fire department for approval.

The fire department rejected the alternatives, and the appellant sought an order directing compliance.

The application judge found the Fire Marshal improperly delegated the final decision to the fire department without a mechanism for review, and referred the matter back to the Fire Marshal.

The Divisional Court dismissed the appeal, agreeing that the delegation was improper and the referral was a sensible exercise of discretion under s. 32 of the Fire Protection and Prevention Act.

The appellant appealed a Small Claims Court judgment dismissing his claim for $14,000 against a law firm.

The appellant alleged the money was a retainer for unprovided services, while the law firm maintained $9,000 was received for rent owed by a sub-tenant, who corroborated this account.

The Divisional Court dismissed the appellant's motion to introduce fresh evidence and dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility assessments.

Costs of $2,000 were awarded to the respondents.

The proposed appellant sought leave to appeal an order allowing the plaintiff, an unregistered limited partnership, to continue an action commenced before it was properly registered.

The proposed appellant argued that the word 'maintain' in section 28 of the Limited Partnerships Act means 'commence', requiring the plaintiff to start a new action.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting case law and no good reason to doubt the correctness of the motions judge's determination that 'maintain' allows for the continuation of an action already commenced.

The appellants appealed a Small Claims Court judgment finding misrepresentation regarding lighting services provided to the respondent.

The trial judge had found the individual appellant personally liable because the corporate appellant was dissolved.

The Divisional Court dismissed the appeal regarding liability, finding no palpable and overriding error.

However, the court allowed the appeal regarding the proper defendant, holding that an action can be maintained against a dissolved corporation and there was no evidence the individual appellant was a party to the contract in his personal capacity.

Judgment was entered against the corporate defendant instead.

Following the dismissal of his appeal regarding the enforcement of a settlement, the appellant sought to be relieved from paying costs, claiming impecuniosity.

The Divisional Court rejected this argument, finding the appellant failed to provide sufficient evidence of his financial situation.

The court noted the appellant had $30,000 in settlement funds held in trust, which could satisfy the costs award.

Costs were fixed at $5,000 payable to the respondent police services board out of the trust funds.

The appellants appealed a Master's order dismissing their motion to extend the time for service of a Statement of Claim arising from a fatal motor vehicle accident.

The Master had found that the defendants would be prejudiced by the delay.

The Divisional Court allowed the appeal, finding that the Master erred in law by concluding that a co-defendant's right to claim contribution and indemnity was lost due to the expiry of a limitation period, and by failing to hold the defendants to their evidentiary obligation to demonstrate actual prejudice caused by the delay in service.

The appellants were granted leave to serve the Statement of Claim.