ODC 2013

The appellant, Municipal Property Assessment Corporation, appealed a decision exempting certain machinery and equipment at hydro-electric generating stations from real property taxation under the Assessment Act.

The appellant argued the application judge erred by applying the rejected 'integration test' to characterize penstocks and surge tanks as equipment rather than structures, and by finding that maintenance and safety items were used for producing electric power.

The Divisional Court dismissed the appeal, finding the application judge correctly applied the holistic approach from Metals Alloys and Nabisco, and correctly concluded that items need not be directly involved in the transformation of water to electricity to qualify for the exemption.

The applicant, a private career college, sought judicial review of a Restraining Order issued by the Superintendent of Private Career Colleges.

The Superintendent had issued the order alongside a Notice of Contravention without providing the applicant prior notice or an opportunity to respond.

The Divisional Court held that the application was not premature and found that the Superintendent breached the duty of procedural fairness by failing to allow submissions before issuing the Restraining Order.

However, because the applicant was subsequently given an opportunity to be heard, which cured the procedural defect, the application was dismissed.

No costs were awarded due to the initial breach of fairness.

The appellants appealed a trial judgment dismissing their personal injury action following a jury verdict that awarded zero damages for a motor vehicle accident.

The appellants argued the verdict was perverse because objective evidence showed a soft tissue injury.

The Divisional Court dismissed the appeal, holding that the jury's assessment of credibility and conclusion that the injury was too slight to warrant compensation were entitled to great deference and supported by the evidence.

The court also found no errors in the trial judge's charge to the jury.

The appellant registered a construction lien on a property owned by his estranged wife, which was subject to mortgages held by the respondents.

The respondent mortgagees successfully moved to discharge the lien under section 47 of the Construction Lien Act on the basis that it was registered in bad faith.

On appeal, the appellant argued the motion judge erred by not applying the summary judgment test under Rule 20.

The Divisional Court dismissed the appeal, holding that the motion judge properly exercised his broad discretion under section 47 and was not required to apply Rule 20 since the motion did not seek to dismiss the action.

The appellant appealed an order dismissing its motion for leave to amend its Statement of Claim to add claims of negligence and negligent misrepresentation regarding an adhesive product.

The Master had found the proposed amendments sought to plead new facts and causes of action that were statute-barred.

The Divisional Court allowed the appeal, finding that the original claim contained sufficient material facts to support the new legal theories, and the amendments merely sought alternative remedies based on the same facts.

The moving party sought leave to appeal, which was dismissed on the basis of prematurity.

The successful respondents sought costs.

The moving party argued each party should bear its own costs due to the public interest and novelty of the issue.

The court rejected this argument, finding that the usual rule of costs following the event applied, especially since the motion was dismissed for prematurity.

The court awarded costs of $3,000 inclusive to the clients represented by Mr. Streisfield.

The applicant, a licensed standardbred trainer, sought judicial review of a decision by the Ontario Racing Commission panel that found him guilty of animal abuse and imposed penalties including a 90-day suspension and a fine.

The panel had conducted a trial de novo following a previous successful judicial review by the applicant.

The Divisional Court dismissed the application, finding that the panel applied the correct standard of proof and that its decision, based on circumstantial evidence, was reasonable.

The applicant physician sought judicial review of a decision by the College's Inquiries, Complaints and Reports Committee ordering a clinical caution and preceptorship.

The applicant argued the College lacked statutory authority and breached procedural fairness by initiating a broader investigation into his practice before resolving an initial patient complaint.

The Divisional Court dismissed the application, finding the College had the authority to initiate the investigation based on reasonable and probable grounds, the request for OHIP records was relevant, and the disposition addressing both record-keeping and clinical concerns was reasonable.

The Service Employees International Union applied for judicial review of an interest arbitration award that imposed a zero salary increase for the first two years of a collective agreement with 98 nursing homes.

The union argued the arbitrator unreasonably ignored the employers' ability to pay, mischaracterized Ontario's economy, and relied on inappropriate comparable settlements.

The Divisional Court dismissed the application, finding the arbitrator's application of the statutory criteria under the Hospital Labour Disputes Arbitration Act and his ultimate award were reasonable and entitled to a high degree of deference.

Following the dismissal of the appellant's appeal, the respondent sought partial indemnity costs of $5,565.54.

The self-represented appellant argued the amount was excessive and disproportionate to the underlying judgment of $772.06.

The court agreed that 19 hours of preparation was excessive for a straightforward appeal, but noted the appellant bore responsibility for bringing the appeal.

Costs were fixed at $2,500 inclusive of HST and disbursements.

The Toronto Police Association sought judicial review of an arbitrator's decision that a twice-daily reporting requirement for suspended police officers was outside the scope of arbitral review.

The arbitrator had concluded the requirement was an operational matter within the exclusive authority of the Chief of Police.

The Divisional Court found the arbitrator's decision unreasonable, holding that the reporting requirement for suspended officers is a working condition subject to the collective agreement and the supervisory powers of the Police Services Board.

The arbitrator's award was quashed and the matter remitted for a decision on the merits.

The appellants appealed a Small Claims Court judgment awarding the respondent $14,000 for breach of a distribution agreement.

The dispute arose when the respondent refused to make a payment without first inspecting the machinery, which the appellants refused to allow.

The Divisional Court found that while the Deputy Judge erred in admitting two affidavits without considering the appellants' inability to cross-examine the deponents, this error did not affect the result.

The court upheld the findings that the operability of the machine was relevant and that the appellants were liable for the respondent's loss.

The appeal was dismissed.

The plaintiffs sought leave to appeal an order upholding a Master's decision requiring them to post further security for costs.

The plaintiffs, who were non-residents and not impecunious, argued the judge misapplied the 'good chance of success' test by conflating it with the summary judgment test and failing to define it.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the order and holding that the Master and the appeal judge had properly applied the established legal test.

Following the dismissal of the appellants' appeal from a Small Claims Court decision, the successful respondent sought costs on a substantial or full indemnity scale.

The court determined that partial indemnity was the appropriate scale, as no special circumstances justified a higher scale.

Applying the principles of fairness, reasonableness, and proportionality, the court rejected the respondent's claim for over $9,600 in costs, noting the amount in issue at trial was only $6,872.

Costs were fixed at $3,500 all-inclusive.

The landlord moved to quash the tenant's appeal of a Landlord and Tenant Board eviction order on the basis that it was manifestly devoid of merit.

The tenant argued the eviction order was an improper collateral attack on a recognizance issued after related criminal charges were withdrawn, and alleged improper ex parte communications by the landlord.

The Divisional Court found both grounds of appeal manifestly devoid of merit, noting that the withdrawal of criminal charges does not preclude eviction based on the same underlying acts due to differing standards of proof.

The motion to quash was granted, the appeal was dismissed, and costs were awarded to the landlord.

Following a decision granting the proposed intervenors leave to intervene, the court determined the issue of costs.

The court found that the nature of the case and the intervenors' interests warranted a costs award to the successful intervenors.

Applying the principle of proportionality, the court awarded costs on a modified partial indemnity scale, fixing the costs of the institutional intervenor at $5,500 and the individual intervenors at $6,500.

The applicant, a former employee, sought judicial review of a Pay Equity Hearings Tribunal decision that dismissed her application under the Pay Equity Act for failing to establish a prima facie case.

She argued the Tribunal made findings of fact without evidence and denied her procedural fairness by refusing an adjournment to retain counsel.

The Divisional Court found the Tribunal's decision reasonable, noting the applicant failed to plead material facts challenging the pay equity plan and had ample notice that her application could be dismissed early.

The application for judicial review was dismissed with costs.

The appellants appealed a Licence Appeal Tribunal decision directing the revocation of their motor vehicle inspection station and mechanic registrations.

They argued the Tribunal erred in weighing historical allegations and denied procedural fairness through undue interference during the hearing.

The Divisional Court dismissed the appeal, finding the Tribunal reasonably considered the appellants' entire course of conduct, including 22 recent allegations of malfeasance, and that the Tribunal's interventions to clarify technical evidence did not create a reasonable apprehension of bias.

The moving party sought leave to appeal a costs order requiring him to pay $32,500, representing 50% of the responding party's partial indemnity costs.

He argued the trial judge erred in determining the responding party was the more successful party despite divided success.

The court dismissed the motion, finding that the determination of relative success is a discretionary matter and the trial judge made no error in principle or misapprehension of significant facts.

The appellant appealed a motion judge's order enforcing a settlement of her claims for statutory accident benefits against her automobile insurer.

The appellant had accepted an offer to settle but later rescinded it, arguing the offer did not qualify as a Rule 49 offer and thus was subject to the rescission provisions of the Automobile Insurance Regulation.

The Divisional Court agreed, finding the offer required the appellant to release future claims not included in her statement of claim, meaning it was not a valid Rule 49 offer.

The appeal was allowed and the judgment enforcing the settlement was set aside.