ODC 2014

The appellant physician appealed findings by the Discipline Committee of the College of Physicians and Surgeons that he engaged in sexual abuse of a patient and professional misconduct.

The appellant argued the Committee failed to properly consider inconsistencies in the complainant's evidence and video surveillance footage.

The Divisional Court dismissed the appeal, finding the Committee's credibility assessments and conclusions were reasonable and supported by the evidence.

Following a successful appeal that certified a class proceeding after the appellant re-cast its case, the court determined the costs of the appeal and the motion below.

The appellant was awarded $45,000 for the appeal as the successful party.

However, because the appellant completely re-formulated its case on appeal, prejudicing the respondent at the motion stage, the court set aside the motion judge's $200,000 costs award to the respondent and ordered that neither party receive costs for the motion below.

Following the dismissal of the appellants' appeal regarding insurance coverage for stolen marijuana plants, the respondent insurer sought costs.

The court awarded the respondent partial indemnity costs, noting that while the respondent was entirely successful, the legal issues were novel and there was no guiding precedent.

Costs were fixed at $6,000 inclusive of HST and disbursements, reflecting a modest allowance for junior counsel.

The applicant insurer sought judicial review of a FSCO Director's Delegate decision upholding an Arbitrator's finding that the respondent suffered a catastrophic impairment.

The respondent had recorded a Glasgow Coma Scale (GCS) score of 9 several days after a motor vehicle accident, which the insurer argued was confounded by medication and other injuries rather than brain impairment.

The Divisional Court dismissed the application, holding that the standard of review is reasonableness and that the SABS regulation uses the GCS score as a proxy measurement without requiring an inquiry into the patient's prognosis or the specific cause of the lowered score.

The plaintiff sued the defendant for injuries sustained while bicycling on a recreational trail.

The defendant moved for summary judgment under s. 4 of the Occupiers' Liability Act, which limits liability to reckless disregard for recreational trails.

The motion judge dismissed the motion, finding s. 4 did not apply or created a rebuttable presumption requiring a trial.

On appeal, the Divisional Court allowed the appeal, holding the motion judge erred in law.

Applying the Hryniak standard, the court found no genuine issue for trial as there was no evidence the defendant acted with reckless disregard.

The appellant tavern appealed a License Appeal Tribunal decision finding it breached several provisions of the Liquor Licence Act and its Regulations, resulting in a 10-day licence suspension.

The charges arose after a group of patrons consumed a massive amount of alcohol in a short period, leading to intoxication, a violent altercation with staff, and a subsequent investigation.

The Divisional Court applied a correctness standard of review.

The court upheld findings that the appellant sold liquor to intoxicated persons, permitted drunkenness, permitted violent conduct, and failed to facilitate an inspection.

However, the court quashed findings that the appellant permitted practices encouraging immoderate consumption, committed a second violation of permitting drunkenness, and obstructed an investigation, finding errors of law in the tribunal's reasoning on those points.

The appeal was allowed in part.

The respondent Association of Professional Engineers of Ontario brought a motion to strike factual references from the appellants' facta on appeal and cross-appeal.

The impugned references asserted that the appellant specialized in agricultural engineering.

The respondent argued these assertions were not supported by the evidentiary record from the discipline hearing, as the appellant did not testify.

The court agreed, finding it inappropriate to accept facts beyond the record based merely on the appellant's self-identification in renewal applications.

The motion to strike the references was granted.

The applicant sought leave to appeal a decision upholding a master's order to strike paragraphs from his statement of claim.

The struck paragraphs referred to documents and information obtained during a public complaint process under the Police Services Act, which are deemed privileged.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the lower court's decision.

The applicant, a medical resident, sought judicial review of a decision by the university's Senate Appeals Committee that upheld her placement on academic probation due to poor performance and patient safety concerns.

The applicant argued that the committee violated procedural fairness and that its decision was unreasonable.

The Divisional Court dismissed the application, finding that the committee provided a high degree of procedural fairness, cured any minor procedural defects through a de novo hearing, and reached a reasonable decision within its academic expertise.

The tenant appealed an order of the Landlord and Tenant Board terminating her tenancy and evicting her for non-payment of rent.

She argued that the Board breached procedural fairness by denying her request for a third adjournment to summons a witness from Social Services, and that she did not owe the rent arrears.

The Divisional Court dismissed the appeal, finding no breach of natural justice as the tenant had previously been granted two adjournments and failed to comply with interim orders to produce evidence.

The Board's finding on the rent arrears was reasonable based on the landlord's uncontradicted ledger evidence.

The appellant employer appealed a trial judge's decision awarding the respondent employee $10,108.55 in unpaid short-term disability benefits.

The trial judge calculated the benefits based on the written policy in the employee handbook, rejecting the employer's evidence of an unwritten policy that applied a different calculation method.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's findings of fact and mixed fact and law.

Following the dismissal of the applicant's motion for public and private interest standing and the dismissal of the Notice of Application, the successful respondents sought costs.

The applicant, who was self-represented, opposed the costs but made no specific submissions on the costs outlines, instead repeating the merits of his dismissed claims.

The court found the applicant's conduct caused unnecessary delay and expense, and awarded partial indemnity costs of $4,000 to the Crown and $4,324.87 to Metrolinx.

The plaintiff in a proposed class action brought a motion for a stay of a case management direction pending a motion for leave to appeal.

The case management judge had ordered that the parties were not required to exchange affidavits of documents prior to a focused summary judgment motion.

The Divisional Court dismissed the motion for a stay, finding that the plaintiff failed to satisfy any of the three branches of the RJR-MacDonald test.

The court held there was no serious issue to be tried regarding the discretionary case management order, no irreparable harm, and the balance of convenience favoured allowing the action to move forward.

The applicant brought a motion to set aside the Registrar's orders dismissing her appeals from the Small Claims Court for late perfection, and sought an extension of time to file.

The court applied the four-part test from Mignacca v. Merk Frost Canada Ltd. While the applicant formed an intention to appeal, the court found she failed to provide the necessary materials or authorities to demonstrate an arguable case on the merits.

The motion to set aside the Registrar's orders was dismissed.

The appellant, a real estate lawyer, appealed a decision of the Law Society Appeal Panel which ordered a new hearing on allegations of professional misconduct related to his participation in real estate flip transactions.

The original hearing panel had dismissed the fraud allegations, finding a lack of direct evidence from the lenders or participants.

The Divisional Court dismissed the appeal, agreeing with the Appeal Panel that the hearing panel erred in law by failing to consider circumstantial evidence and by incorrectly requiring proof of actual economic loss rather than a mere risk of prejudice to establish fraud.

The applicant, a Justice of the Peace, sought judicial review of a decision by the Justices of the Peace Review Council regarding his inappropriate conduct.

The Divisional Court dismissed the application primarily due to an unexplained 18-month delay in bringing the proceeding.

The court also considered the merits, finding no procedural unfairness in the complaint or investigation process, and rejecting the applicant's claim of ineffective counsel, noting there is no right to effective counsel in civil proceedings.

The plaintiff brought a motion to set aside the registrar's dismissal for delay of his appeal to the Divisional Court.

The appeal was from a Master's decision dismissing his motion to set aside the dismissal of his action for delay.

The court applied the factors from Paulsson v. University of Illinois and found that the plaintiff failed to meet his burden.

The delay in obtaining transcripts was not a valid excuse, and the justice of the case favoured the defendants given the history of delay and the weak merits of the appeal.

The motion was dismissed.

The moving parties sought leave to appeal a costs order of $35,387.53 awarded on a substantial indemnity basis.

The motion judge had found their conduct in ignoring disclosure obligations to be reprehensible.

The Divisional Court dismissed the motion for leave, finding no basis to interfere with the motion judge's factual findings and discretionary costs award.

Costs of the motion were fixed at $4,500 payable by the moving parties.

The appellant appealed an order declaring a Notice of Garnishment served on a law firm invalid and unenforceable.

The Divisional Court found that the motions judge erred in law by holding that funds in the lawyers' trust account were not subject to garnishment, as the funds were advanced to satisfy a mortgage debt and could have been withdrawn by the debtor.

However, the court upheld the motions judge's decision based on his equitable discretion, finding no error in his conclusion that the garnishment was an oppressive step in the context of the family dispute.

The appeal was dismissed.

The parties consented to an order fixing the costs of the appeal.

The court ordered the appellants to pay $15,000 in costs to the respondent.