ODC 2014

The defendant successfully sought a dismissal or stay of the main action on the basis that it was improperly constituted, as well as the payment out of court of $110,000.

The court found that the plaintiff was responsible for the wasted time and money subsequent to the setting aside of the default judgment.

Consequently, the court awarded the defendant her costs of the action on a substantial indemnity basis, fixed at $19,662 for fees and $3,757.25 for disbursements.

The appellant sought an easement over Crown lands subject to unpatented mining claims held by the respondent to build a road to a proposed mine.

The respondent refused consent, intending to build a railway on the same corridor.

The Mining and Lands Commissioner (MLC) dismissed the appellant's application to dispense with consent.

On appeal, the Divisional Court found the MLC's decision unreasonable, as it misinterpreted the Mining Act by failing to apply the limitations on surface rights to unpatented claims on Crown land and improperly required the appellant to prove a public interest.

The Court substituted its own decision, dispensing with the respondent's consent, finding no evidence that the road would significantly interfere with actual or proposed mining activities on the claims.

The Wabauskang First Nation applied for judicial review of a decision by the Director of Mine Rehabilitation acknowledging a Production Closure Plan submitted by Rubicon Minerals Corporation for a gold mining project.

The First Nation argued that Ontario failed to fulfill its duty to consult and accommodate and improperly delegated this duty to the mining company.

The Divisional Court dismissed the application, finding that Ontario's assessment of the potential claims was reasonable, that it fulfilled its duty to consult and accommodate, and that it only delegated procedural aspects of the consultation to the proponent while retaining ultimate legal responsibility.

The moving party sought leave to appeal an order striking his defence for failing to answer undertakings given at discovery.

The moving party argued there were conflicting decisions on the meaning of 'best efforts' to fulfill undertakings.

The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the lower court's decision and no conflicting case law, as the moving party's efforts to obtain the required records fell well below the expected standard.

The appellants moved to set aside an administrative dismissal of their Divisional Court appeal and to extend the time for appeal.

The appeal had been dismissed by the Registrar based on a misapprehension that no transcript was required.

The court found that the dismissal was an administrative error, as transcripts had been ordered and the trial judge had not yet issued a final judgment on the construction lien issues.

The court set aside the dismissal and granted the extension of time, finding the four-part test for an extension was met.

The father brought a motion for leave to appeal and to stay an ex parte interim order that granted the mother sole custody and restricted the father to one hour of supervised access per week.

The parties had previously shared custody equally.

The motions judge had made the order without fully reviewing the father's responding materials, concluding the father was mentally unbalanced based on select emails.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order due to procedural unfairness and the drastic change to the status quo without a finding of material change.

The court also granted a stay pending appeal, reinstating the previous shared parenting schedule in the best interests of the children.

Following the dismissal of the appellant's motion to reinstate three Small Claims Court appeals, the respondent sought costs of $8,696.89 on a partial indemnity basis.

The appellant argued costs should be fixed at $1,200.

The Divisional Court found the respondent's requested costs excessive and disproportionate for a straightforward motion involving approximately $13,000.

Applying the factors in Rule 57.01, the court fixed costs at $2,500 all inclusive, payable by the appellant.

Following a successful appeal from a Small Claims Court judgment, the appellant sought partial indemnity costs of $7,549.16.

The respondents argued the amount was not proportional to the $25,000 in dispute and requested costs be awarded only against two of the three respondents.

The Divisional Court found the requested amount reasonable and proportionate, noting the complexity of the appeal.

Costs were awarded to the appellant in the requested amount against all respondents.

The plaintiffs sued the defendants, including the opposing party's law firm, for negligent misrepresentation regarding an equity raise condition in a loan agreement.

During discovery, the defendants sought communications between the plaintiffs and their own counsel, arguing that the plaintiffs' allegation of detrimental reliance constituted a deemed waiver of solicitor-client privilege.

The Master upheld the privilege, but the appeal judge reversed, finding a deemed waiver.

The Divisional Court granted leave to appeal, noting a conflict in the jurisprudence regarding whether alleging detrimental reliance equates to a waiver of privilege.

The applicant sought judicial review of a decision by a professional association to withdraw him from its professional studies program for possessing unauthorized study notes during an examination.

The applicant argued he was denied procedural fairness because he was not given notice of the investigation or an opportunity to appear in person to show cause why the maximum penalty should not be imposed.

The Divisional Court granted the application, finding serious breaches of procedural fairness by both the initial decision-maker and the appeals committee, and held that the decisions were unreasonable.

The matter was remitted for a rehearing to allow the applicant to make submissions in person regarding the appropriate penalty.

The appellant appealed a Small Claims Court judgment awarding the respondent contractor $18,161 for home renovations.

The appellant argued the trial judge erred in admitting an annotated work report not served 30 days before trial and in finding the contract scope excluded a former restaurant attached to the home.

The Divisional Court dismissed the appeal, holding that the Small Claims Court rules on document admission are enabling, not prohibitive, and that the trial judge's interpretation of the contract scope was supported by ample evidence.

The moving party sought leave to appeal an Ontario Municipal Board (OMB) decision that approved ten minor variances for the responding parties' proposed home construction.

The moving party, a neighbour who had 'participant' status at the OMB hearing, argued the OMB's reasons were insufficient and failed to demonstrate it grappled with the issues.

The Divisional Court dismissed the motion, finding the OMB's reasons were sufficient given the brief, uncontested expert evidence presented at the hearing.

In obiter, the court noted that a 'participant' at an OMB hearing likely lacks standing to seek leave to appeal.

The applicant union sought judicial review of an Ontario Labour Relations Board decision dismissing an unfair labour practice complaint.

The union alleged the employer violated the statutory freeze period under s. 86 of the Labour Relations Act by reducing employee benefits after the applicant displaced the incumbent union.

The Board found that the employer's obligation was only to pay premiums to the incumbent union's trust fund, which became impossible upon displacement.

Applying the 'reasonable expectations' test, the Board concluded the employer's substituted benefit plan was reasonably comparable and did not violate s. 86.

The Divisional Court held the Board's decision was reasonable and dismissed the application.

The appellants appealed an order dismissing their motion to strike the respondents' claim for intentional interference with economic relations.

The appellants argued the claim lacked sufficient particulars regarding unlawful conduct, actionable conduct against third parties, and damages.

The Divisional Court dismissed the appeal, finding that the statement of claim and amended particulars provided sufficient material facts to allow the appellants to respond, and that the pleading adequately disclosed a reasonable cause of action.

Following an appeal and cross-appeal where success was divided, the parties made written submissions on costs.

The Divisional Court ordered no costs for the appeal due to the divided success, noting the significant finding of oppressive conduct by the appellants.

The court also set aside the application judge's costs award of $25,000 due to the altered outcome, but upheld the award of $14,790 plus HST for accounting fees, as the appellants' conduct necessitated retaining accountants.

The moving parties and responding parties both brought motions under s. 21(5) of the Courts of Justice Act to vary or set aside an earlier order that denied a stay of a Renewable Energy Approval but granted an injunction subject to an undertaking as to damages.

The Divisional Court held that Rule 63.02 does not confer jurisdiction to stay a Renewable Energy Approval, as it is not an 'order' within the meaning of the rule.

The court found no error in the motion judge's exercise of inherent jurisdiction to grant injunctive relief under Rule 40 instead.

Both the motion and cross-motion were dismissed.

The defendants sought leave to appeal a costs order of $55,000 made against them following the dismissal of their motion for summary judgment.

They argued the motions judge erred by failing to specify the level of recovery and by not addressing their detailed challenges to the plaintiffs' costs outline.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions, no obvious error in the motions judge's exercise of discretion, and no issue of general importance that transcended the interests of the parties.

The appellant appealed an order dismissing its motion for leave to amend its Statement of Defence and to commence a cross-claim and counterclaim.

The proposed amendments alleged that a settlement agreement between the plaintiff and other defendants constituted a breach of a prior agreement.

The Divisional Court upheld the Master's decision, finding that the Master correctly concluded the proposed amendments were not tenable in law based on a review of the settlement agreement.

The appellants appealed the dismissal of four Small Claims Court actions regarding towing and storage liens under the Repair and Storage Liens Act.

The deputy judge had dismissed the actions mid-trial on a nonsuit motion, finding the wrong parties were named.

The Divisional Court allowed the appeal, finding the deputy judge made palpable and overriding errors regarding the proper parties and erred in law by granting a nonsuit motion before the plaintiffs had completed their case and without putting the defendants to an election.

A new trial was ordered.

The applicant sought judicial review of a development charges by-law passed by the respondent municipality, arguing that the municipality failed to provide adequate notice of public meetings, thereby denying procedural fairness.

The Divisional Court found that while the municipality failed to strictly comply with statutory notice requirements for the first meeting, procedural fairness was not denied.

However, the court held that the applicant was denied procedural fairness regarding the second meeting because the Mayor had explicitly promised further notice and an opportunity to be heard, which was not provided.

The court declined to quash the by-law but ordered the municipality to refund development charges paid by the applicant and other affected landowners during an 18-month transition period.