ODC 2014

The appellants obtained a default judgment against the respondent, an undischarged bankrupt, after successfully moving to lift a bankruptcy stay and striking his pleadings without providing him notice.

The respondent successfully moved to set aside the default judgment.

The appellants appealed, arguing the bankrupt lacked standing under the Bankruptcy and Insolvency Act to bring the motion to set aside and that he was not entitled to notice.

The Divisional Court dismissed the appeal, holding that the bankrupt had standing to defend an action involving claims of fraud that would survive bankruptcy, and that he was entitled to notice of the motion to strike under the Rules of Civil Procedure once the stay was lifted.

The appellant appealed a trial decision regarding spousal support, arguing the trial judge erred in applying the rule against double recovery, imputing income, and weighing medical evidence.

The Divisional Court dismissed the appeal, finding the trial judge properly applied the Boston principle in light of the parties' separation agreement and the appellant's reckless depletion of assets.

The court also upheld the imputation of $5,000 in annual income due to the appellant's poor financial decisions and found no error in the trial judge's treatment of the medical evidence.

The tenants appealed a decision of the Landlord and Tenant Board on review, which had reversed an earlier order dismissing the landlords' application to terminate the tenancy for personal use.

The original Board Member found the landlords' notice was not given in good faith and that they were in serious breach of their responsibilities.

The reviewing Board Member found the original member erred by considering the reasonableness of the landlords' motives.

The Divisional Court allowed the appeal, holding that the reviewing member unreasonably restricted the meaning of 'good faith' by excluding consideration of motives, and unreasonably failed to address the landlords' serious breach of responsibilities.

The original order dismissing the termination application was restored.

The applicant union sought judicial review of an arbitrator's award upholding the termination of three employees for assaulting a replacement worker during a strike.

The arbitrator found the assault was premeditated and unprovoked, and that the employees were dishonest during the proceedings.

The Divisional Court dismissed the application, holding that the arbitrator's findings of fact were reasonable, supported by the evidence, and entitled to the highest level of deference.

The successful defendants/appellants sought costs of $63,158 following an appeal that set aside an order and a certificate of pending litigation.

The Divisional Court found the requested amount excessive and fixed costs at $45,000 all-inclusive for the motion to set aside the certificate, the motion for leave to appeal, and the appeal itself.

The moving party sought an extension of time to file a Notice of Appeal in the Divisional Court from a trial judgment dismissing her wrongful dismissal action.

The moving party had initially filed her appeal in the Court of Appeal, which quashed it for lack of jurisdiction after a seven-month delay during which her counsel ignored warnings about the jurisdictional error.

The Divisional Court applied the four-factor test for extending time and found no bona fide intention to appeal, no reasonable explanation for the excessive delay, and no merit to the proposed appeal.

The motion was dismissed.

The plaintiff was injured in a motor vehicle accident in Alberta.

His insurer brought a subrogated action in his name for property damage without his knowledge, which was resolved by a consent judgment.

The plaintiff subsequently commenced a personal injury action in Ontario.

The defendant appealed the dismissal of a summary judgment motion, arguing the personal injury claim was barred by res judicata as one wrong cannot generate multiple causes of action.

The Divisional Court dismissed the appeal, holding that the Alberta Insurance Act differentiates subrogated property damage claims from personal injury claims, and an implied term in the consent judgment preserved the plaintiff's right to sue for personal injuries.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board order terminating her tenancy.

The tenant had submitted a notice to terminate but later tried to rescind it, which the landlord refused.

The Board ordered termination and dismissed the tenant's motion to set aside.

The tenant appealed, arguing the project was a condominium conversion giving her security of tenure under s. 51 of the Residential Tenancies Act.

The Divisional Court found the appeal manifestly devoid of merit as the project was clearly a demolition, not a conversion.

The motion to quash was granted and the certificate of stay was lifted.

The Minister of Community Safety and Correctional Services applied for judicial review of a decision by the Information and Privacy Commissioner (IPC) ordering the disclosure of dates when DNA samples were collected and reported.

The Divisional Court found that the IPC breached the duty of procedural fairness by failing to give notice of the appeal to the victims or representatives of deceased victims, whose privacy rights were engaged.

The court allowed the application and referred the matter back to the IPC for reconsideration on notice to the affected parties, to allow for a complete balancing of interests.

The successful applicant in a labour arbitration judicial review sought partial indemnity costs exceeding $30,000.

The Divisional Court found this amount excessive for a matter that was not overly complex.

The court fixed costs at $7,500, which it deemed to be within the accepted range for such proceedings.

The appellants appealed an order of the Landlord and Tenant Board evicting them as unauthorized occupants.

The Divisional Court found that the Board denied the appellants natural justice by refusing to consider their position that they resided on the premises based on an agreement with the landlord, not as tenants or unauthorized occupants.

The Board erred in law by ordering their eviction without any evidentiary basis under section 100 of the Residential Tenancies Act.

The appeal was allowed and a new hearing was ordered.

The applicant applied for judicial review of an arbitrator's decision ordering the disclosure of contested documents.

The applicant argued it was denied procedural fairness because the arbitrator misunderstood its concession regarding the independence of a third party and failed to hold a hearing on the third party's neutrality.

The Divisional Court dismissed the application, finding no denial of procedural fairness as the distinction between neutrality and independence was mere wordsmithing.

The Court also upheld the arbitrator's jurisdiction to order disclosure, finding her interpretation of the grievance reasonable.

The applicant sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision that awarded her $5,000 for discrimination.

The applicant argued the award was unreasonable because it did not compensate her for lost wages akin to a wrongful dismissal claim.

The Divisional Court dismissed the application, holding that the HRTO's award was based on a procedural failing in the duty to accommodate and was distinct from common law wrongful dismissal damages.

Applying the reasonableness standard of review, the court found the HRTO's decision fell within the range of possible, acceptable, and defensible outcomes.

The appellant appealed an order discharging a Certificate of Pending Litigation (CPL) and a limited proprietary injunction, which allowed the respondent to sell or encumber a property to fund legal defence costs for herself and her parents.

The appellant argued the motions judge erred in assessing its fraudulent conveyance and resulting trust claims, and in allowing the property's equity to fund the father's legal fees.

The Divisional Court dismissed the appeal, finding no legal error in the motions judge's assessment of the claims and no palpable or overriding error in his exercise of discretion to ensure the defendants had access to legal representation.

The applicant brought a motion to set aside the Registrar's order dismissing his appeal and to extend the time to perfect the appeal.

The court applied the factors from Paulsson, focusing on the justice of the case and the merits of the appeal.

The court found that the motion judge did not err in holding that the applicant lacked a legal interest under s. 3(1) of the Partition Act and that the document signed by the parties did not constitute a valid trust due to a lack of the three certainties.

Finding no error in principle and no real chance of success on appeal, the court dismissed the motion and awarded costs to the respondent.

The applicants sought judicial review of an interlocutory ruling made by a coroner at the outset of an inquest into a police shooting.

The ruling limited the scope of cross-examination of two police officers regarding their consultations with counsel prior to making their notes.

The Divisional Court dismissed the application on the basis of prematurity, holding that courts should not intervene in ongoing administrative proceedings, particularly coroner's inquests, absent exceptional circumstances that would result in a fundamental failing of justice.

The applicant physician sought judicial review of a decision by the Inquiries, Complaints and Reports Committee (ICRC) requiring him to be cautioned and to participate in a behavioral program.

He argued he was denied procedural fairness because the ICRC failed to disclose 13 interview summaries, 20 internal complaints, and hospital policies considered by its medical inspector.

The Divisional Court found that while the applicant was aware of the complaints and policies, the failure to disclose the 13 interview summaries breached the duty of procedural fairness.

The application was allowed, the ICRC decision was set aside, and the matter was remitted for reconsideration following proper disclosure.

The appellant private career college appealed a decision of the Licence Appeal Tribunal directing the Superintendent to refuse to renew its registration.

The Tribunal's decision was based on findings related to student refunds and compliance issues.

The Divisional Court found that there was ample evidence to support the Tribunal's conclusion that the appellant failed to operate the college in accordance with the law and with honesty and integrity.

The appeal was dismissed.

The purchasers of a residential property and the vendor brought a Small Claims Court action against the vendor's real estate agent and the contractor hired by the vendor to perform renovations.

The trial judge awarded damages against both the agent and the contractor for negligent misrepresentation and defective work.

The contractor appealed.

The Divisional Court allowed the appeal, finding that the trial judge erred in law by treating the contractor as an agent and finding a special relationship where none existed.

The contractor had no contractual relationship with the purchasers, and his liability was solely to the vendor, who had suffered no damages.

The appellants, former counsel for the respondent in family law proceedings, appealed an order and a subsequent costs endorsement.

The Divisional Court found no palpable and overriding error of fact or law in the motions judge's findings regarding the advancement of funds.

The court also determined that leave was not required to appeal the costs endorsement under s. 133(b) of the Courts of Justice Act, and found no error in the motions judge's exercise of discretion.

The appeals were dismissed with costs awarded to the respondent.