ODC 2014

The applicants sought an order of mandamus to compel the Ministry of the Environment to issue a Renewable Energy Approval for a wind energy project, or alternatively, to compel a decision.

The applicants argued they had a legitimate expectation of a decision within six months based on a Ministry service standard.

The Divisional Court dismissed the application, finding no clear legal duty to issue the approval and no enforceable right arising from the service standard.

The Court also held that the Director reasonably postponed the decision due to pending litigation regarding the Crown's duty to consult aboriginal people.

Declaratory relief was also denied.

The plaintiff sought leave to appeal an order dismissing her motion for leave to bring a partial summary judgment motion on liability and contributory negligence after the action had been set down for trial.

The Divisional Court dismissed the motion for leave to appeal, finding that the motions judge correctly applied the test under Rule 48.04 and that there was no conflicting decision or reason to doubt the correctness of the order.

The court agreed that a summary judgment motion would not provide a proportionate, more expeditious, or less expensive means to achieve a just result than a trial.

The appellant appealed a Small Claims Court decision awarding the respondent $6,945.18 for waste removal services.

The appellant, who suffers from a sleep disorder and admits to hoarding, argued that the contract only required him to pay the amount he received as a disability tax credit refund.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Deputy Judge's conclusion that the contract was unambiguous, there was no misrepresentation, and the appellant was fully aware of his legal obligations.

The moving parties brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order dismissing their motion for leave to appeal a costs order.

They argued they were denied natural justice regarding submissions on the responding party's impecuniosity and that the trial judge erred in considering impecuniosity.

The Divisional Court dismissed the motion, finding the motions judge applied the correct test for leave to appeal, made no error in principle, and properly considered impecuniosity as a relevant factor in awarding costs.

The appellant lawyer appealed a decision of the Law Society Appeal Panel, which had overturned a Hearing Panel's finding that he did not commit fraud in certain real estate transactions.

The appellant argued the Appeal Panel failed to respect the Hearing Panel's credibility finding that he had an honest but mistaken belief that the lenders knew the actual structure of the transactions.

The Divisional Court dismissed the appeal, agreeing with the Appeal Panel that the Hearing Panel's credibility findings were tainted by its flawed legal analysis of fraud, and upholding the referral to a new Hearing Panel.

The respondent mother sought leave to appeal a motions judge's decision refusing to set aside previous interim family law orders.

The mother argued the previous orders were a nullity because her right to a bilingual proceeding had been breached.

The Divisional Court denied leave to appeal, finding no good reason to doubt the correctness of the motions judge's decision, as the mother had not been denied her language rights but had failed to pursue them procedurally.

The court also found the proposed appeal did not involve matters of such importance to warrant leave, as the case turned on factual findings rather than substantive language rights.

The respondents sought costs following the dismissal of the applicant's judicial review application.

The respondents sought substantial indemnity costs, arguing the litigation was duplicative, vexatious, and involved unfounded allegations of bias.

The applicant argued for modest costs to accommodate access to justice.

The Divisional Court agreed with the respondents, finding the judicial review replicated previous litigation and was entirely unfounded.

The court awarded substantial indemnity costs of $15,000 to the Swan respondents and $8,088.46 to the University of Western Ontario.

The applicant challenged the constitutionality of a regulation under the Highway Traffic Act that requires drivers 80 years of age and older to undergo biennial testing to renew their driver's licences.

The applicant argued this requirement discriminated on the basis of age contrary to s. 15 of the Charter.

The Divisional Court dismissed the application, finding that the testing program is individualized, sensitive to the potential problems of aging, and not based on arbitrary or demeaning stereotypes.

The court concluded the regulation does not violate s. 15 of the Charter.

The appellants, acting as a general contractor, appealed a trial judgment awarding the respondent electrical contractor payment for certain extras.

The appellants argued the trial judge erred in law by finding that formal approval or documentation was not required for the extras.

The Divisional Court dismissed the appeal, holding that the trial judge's conclusion was a finding of mixed fact and law based on the parties' course of dealing, and there was no palpable and overriding error.

Costs were awarded to the self-represented respondent.

Following the dismissal of an appeal under the Building Code Act, the successful respondents sought costs.

The appellant argued no costs should be awarded or they should be limited to $10,000.

The Divisional Court found no reason to depart from the general rule that successful parties are entitled to partial indemnity costs, but found the amounts sought excessive.

The court awarded partial indemnity costs of $15,000 to the Township and Kopp, and $7,500 to Lystek.

The applicant, a First Nations constable, sought judicial review of a Human Rights Tribunal decision dismissing his complaint that his suspension and termination by the OPP Commissioner were discriminatory and acts of reprisal.

The applicant had been terminated after making public comments criticizing the OPP.

The Divisional Court upheld the Tribunal's findings that the exclusion of First Nations constables from the procedural protections of the Police Services Act was not discriminatory, but rather respected First Nations self-government.

The Court also upheld the finding that the termination was not a reprisal under the Human Rights Code, as the applicant's public comments were not an assertion of human rights.

A related application by the First Nation Council alleging a denial of natural justice was also dismissed.

The applicants sought judicial review of regulations authorizing a two-year spring bear hunt pilot program in northern Ontario, arguing the regulations were ultra vires and the Minister's decision was unreasonable.

The Divisional Court dismissed the application, finding the Minister complied with the Environmental Bill of Rights process, an environmental assessment was not required due to an existing exemption, and the regulations did not conflict with the Criminal Code's animal cruelty provisions.

The court also held that the Minister's decision to implement the pilot project was protected by privative clauses and not subject to judicial review.

The plaintiff brought a motion to set aside an appeal order made by a single judge of the Divisional Court, claiming he failed to appear because he did not receive notice of the hearing.

The defendants brought a cross-motion for security for costs.

The court found it lacked jurisdiction under the Rules of Civil Procedure and the Courts of Justice Act to set aside the appeal order.

Furthermore, the court declined to exercise any residual discretion, noting the plaintiff failed to update his address with the court and lacked diligence.

Both the motion and cross-motion were dismissed.

The appellant wife appealed a temporary order requiring her to advance $100,000 to the respondent husband for interim disbursements and legal fees.

The wife argued that the motions judge erred in his discretion and that there was a lack of procedural fairness because the notice of motion did not specifically request interim disbursements.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness and that the motions judge appropriately exercised his discretion given the serious credibility issues and the need for documentary disclosure.

The applicant massage therapist sought judicial review of a caution issued by the College's Inquiries, Complaints and Reports Committee regarding her advertising practices.

The Divisional Court first determined it had jurisdiction to hear the application, as the proceeding was initiated by a Registrar's report rather than a complaint, meaning no appeal lay to the Health Professions Appeal and Review Board.

On the merits, the Court dismissed the application, finding no denial of natural justice and concluding that the strongly worded caution was appropriate remedial guidance rather than an unauthorized disciplinary reprimand.

The appellant hospital appealed a decision of the Health Professions Appeal and Review Board, which had ordered the renewal of the respondent physician's active staff privileges without conditions.

The hospital argued the Board unreasonably failed to require the physician to participate in a Physician Health Program due to his history of disruptive behaviour and conflicts with administration and nursing staff.

The Divisional Court dismissed the appeal, finding the Board's conclusion that the physician's working relationships had sufficiently ameliorated was reasonable and entitled to deference.

The applicants, commercial motor vehicle operators, sought a mandatory injunction or stay of the Registrar of Motor Vehicles' decision to downgrade their safety ratings from 'Satisfactory' to 'Conditional'.

The applicants argued the Registrar erred by using a kilometric measure and by attributing the same rating to an associated company.

The Divisional Court dismissed the motion, finding no serious issue to be tried as the Registrar acted within his statutory authority and did not breach procedural fairness.

The court also held that the balance of convenience favoured the public interest in highway safety over the applicants' pecuniary interests.

The applicant children's aid society sought judicial review of a decision by the Child and Family Services Review Board.

The Board had overturned the society's refusal of an adoption plan proposed by the children's paternal aunt and uncle, who resided in another province, and ordered the children placed with them primarily to preserve their native cultural identity.

The society argued the decision was unreasonable as it ignored the children's strong attachment to their foster parents of three and a half years and the oldest child's explicit wish to remain.

The Divisional Court agreed, finding the Board made palpable and overriding errors by giving undue weight to the cultural heritage factor while ignoring the children's overall best interests, stability, and the negative assessments of the proposed adoptive home.

The court quashed the Board's decision and reinstated the society's approval of the foster parents' adoption plan.

The appellant appealed a decision of the Discipline Committee dismissing a motion to reconsider its order suspending the mandatory revocation of the respondent pharmacist's certificate of registration for sexual abuse.

The appellant argued the Committee lacked jurisdiction to suspend a mandatory revocation under the Health Professions Procedural Code.

Applying a reasonableness standard of review, the Divisional Court held that the Committee's interpretation of its home statute was reasonable.

The Court found that the mandatory revocation provision did not preclude the Committee from exercising its general power to suspend penalty orders.

The appeal was dismissed.

The appellant appealed a decision of the Criminal Injuries Compensation Board, arguing the Board erred in law by accepting hearsay evidence over his direct evidence without explanation.

The Divisional Court dismissed the appeal, finding the Board's reasons clearly demonstrated the appellant's version was rejected due to major discrepancies and his minimization of his criminal record.

The hearsay evidence, indicating the appellant was injured during a drug transaction, was cogent and properly accepted by the Board.