ODC 2014

The appellants appealed an order finding they acted oppressively toward the respondent, a 10% minority shareholder in a landlord corporation, by leasing property to their own company at below-market rent.

The Divisional Court upheld the finding of oppression regarding the failure to pay fair market rent after the initial lease term expired in 2010.

However, the court set aside the application judge's finding that the respondent reasonably expected triple rent for overholding, and reversed remedial orders directed at a non-party tenant corporation and for the period prior to 2010, finding that cash payments made to the respondent's principal had alleviated any unfair prejudice during that time.

The defendants brought a motion for security for costs of both the trial ($348,135.96) and the pending appeal ($68,417.45) under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The plaintiffs' defamation action had been dismissed at trial.

The court found that the corporate plaintiffs were not impecunious and had sufficient assets to satisfy a cost order.

The court also noted that ordering security for the full amount would unjustly prevent the plaintiffs from pursuing a meritorious appeal.

The court dismissed the motion for security for trial costs but ordered the plaintiffs to post $40,000 as security for the costs of the appeal.

The self-represented applicant brought three procedural motions within his application for judicial review of decisions by the Human Rights Tribunal of Ontario.

First, he sought to strike the respondents' materials for late filing; the court dismissed this, allowing the materials nunc pro tunc as the delay was minimal and caused no prejudice.

Second, he argued the Tribunal's record of proceedings was incomplete; the court agreed and ordered the Tribunal to allow the applicant to select correspondence for a supplementary record, awarding him $150 in costs.

Third, he sought to remove respondent counsel for an alleged conflict of interest; the court dismissed this as the Tribunal had already decided the issue.

The Attorney General moved under s. 21(5) of the Courts of Justice Act to set aside a motion judge's order refusing to consolidate a pharmacist's constitutional challenge in the Superior Court with his professional misconduct appeal in the Divisional Court.

The Attorney General sought to have the consolidated proceeding stayed and the constitutional issue remitted to the College's Discipline Committee.

The Divisional Court dismissed the motion, finding no error of law and no palpable and overriding error in the motion judge's conclusion that exceptional circumstances justified allowing the constitutional challenge to proceed in the Superior Court, particularly given the Discipline Committee's inability to grant a general declaration of invalidity.

The appellant appealed a decision of the Health Professions Appeal and Review Board regarding whether her Master's degree program was "primarily psychological in nature." The Divisional Court dismissed the appeal, finding that the Board conducted a detailed and nuanced examination of the material and that its decision was not demonstrably unreasonable.

The Court noted it was bound to afford deference to the Board's expertise.

No costs were ordered.

The applicant union sought judicial review of a supplementary interest arbitration award concerning per diem meal allowances for cabin personnel on a new low-cost carrier.

The union argued the arbitrator was functus officio and lacked jurisdiction to reverse his previous award.

The Divisional Court dismissed the application, finding that the arbitrator had jurisdiction to clarify an inherent contradiction in the initial award to reflect his manifest intention that the new service remain competitive as a low-cost carrier.

The arbitrator's decision to impose the mainline per diem rate was reasonable.

The plaintiffs appealed an order of a Master dismissing their action for delay at a status hearing.

The plaintiffs argued the Master failed to apply the correct test and failed to undertake a contextual assessment of the delay, which they attributed to corporate bankruptcies, the death of a plaintiff, and a threatened motion for security for costs.

The Divisional Court dismissed the appeal, finding the Master correctly applied the conjunctive test from Faris v. Eftimovski and made no palpable and overriding errors in concluding the plaintiffs failed to provide an acceptable explanation for the delay.

The applicant sought leave to appeal a costs order of $25,800 made against it following the dismissal of its application for document production under the Business Corporations Act.

The applicant argued the motion judge erred in principle and awarded an excessive amount.

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

The moving party was successful in obtaining leave to appeal but unsuccessful in obtaining a stay of a temporary order regarding the exclusive use of a Florida condominium.

The court determined that the moving party was the more successful party overall, as the bulk of the preparation and argument focused on the leave issue.

Applying the factors in Rule 24(11) of the Family Law Rules, the court ordered the responding party to pay costs fixed at $5,500 inclusive.

The appellant appealed a decision of the Discipline Committee finding her guilty of professional misconduct.

The appellant argued that the Committee improperly reversed the onus of proof and applied a different standard in scrutinizing the evidence.

The Divisional Court dismissed the appeal, finding that the Committee correctly articulated the law respecting burden of proof and credibility, and reasonably concluded there was sufficient evidence to establish professional misconduct.

The defendant appealed a trial judgment finding it liable for injuries the plaintiff sustained after falling at its roller skating rink.

The trial judge found the defendant breached its duty under the Occupiers' Liability Act by failing to adequately address a leaking roof, which caused water to pool on the rink floor.

On appeal, the defendant challenged the trial judge's findings on causation, credibility, treatment of corrected discovery evidence under Rule 31.09, and damages.

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

The plaintiff appealed a Master's order dismissing its action under Rule 34.15(1) of the Rules of Civil Procedure for its representative's refusal to answer questions during an examination for discovery.

The Divisional Court allowed the appeal, finding that the Master erred in law and fact by concluding that the plaintiff's conduct was an egregious breach that prejudiced the defendants such that a dismissal was warranted.

The court held that the defendants' prejudice could be remedied by ordering the plaintiff's representative to re-attend the examination and answer proper questions, rather than imposing the draconian sanction of dismissing the action.

The appellants appealed a decision of the Ontario Securities Commission finding they perpetrated a fraud relating to securities and breached their duties as investment fund managers.

The appellants argued the Commission lost jurisdiction when a single commissioner proceeded with the sanctions hearing after the other commissioner's appointment expired.

The Divisional Court dismissed the appeal, holding that the Statutory Powers Procedure Act permitted the Commission to override quorum requirements to proceed expeditiously.

The Court also upheld the Commission's findings of fraud, concluding that subjective awareness of the intended consequences could be inferred from the appellants' actions, and affirmed the sanctions imposed, including significant disgorgement orders.

The appellant appealed a trial decision finding it liable for passing off after it registered a domain name similar to the respondent's and redirected internet traffic to its own competing website.

The trial judge awarded $10,000 in compensatory damages but declined to award punitive damages.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the respondent suffered actual or potential damage.

The court also upheld the $10,000 damages award as a reasonable approximation of the respondent's losses.

The respondent's cross-appeal for punitive damages was also dismissed.

The appellants appealed a Small Claims Court decision finding them liable for negligence in placing an investment for the respondent.

The respondent, an inexperienced investor, had given funds to the individual appellant to invest in a high-risk bond on her behalf.

The Divisional Court allowed the appeal with respect to the corporate appellant, finding no evidence of vicarious liability.

However, the court dismissed the appeal for the individual appellant, holding that as a gratuitous agent, he owed a duty of care which he breached by failing to heed warnings in the offering memorandum and proceeding with the investment.

The tenants brought a motion to stay an eviction order after a single judge of the Divisional Court quashed their appeal from the Landlord and Tenant Board.

The tenants argued that the Board lacked jurisdiction to order eviction while their Superior Court action for damages, which they claimed as an equitable set-off, was pending.

The court dismissed the motion, finding that the tenants failed to establish a serious issue to be tried under the RJR-MacDonald test, as the Board is a statutory tribunal without equitable jurisdiction to stay its own proceedings pending a Superior Court action.

The applicant, a former student, sought judicial review of York University's actions, including issuing a trespass notice and a cease and desist letter, and its handling of his records.

The Divisional Court dismissed the application for lack of jurisdiction, finding that judicial review is a public law remedy and the University's actions were taken as a private landowner.

The court also held that the Charter did not apply to the University's actions as they were not governmental in nature, and noted that complaints regarding criminal conduct, human rights, or privacy must be pursued in other forums.

The appellant landlords appealed a decision of the Landlord and Tenant Board finding that their mobile home park was subject to rent control.

The landlords argued that the property was exempt under section 6(2)(c) of the Residential Tenancies Act because it was not used as a trailer park before November 1, 1991.

The Board found that because a bungalow on the property had been used for residential purposes before 1991, the exemption did not apply.

The Divisional Court applied a reasonableness standard of review and upheld the Board's interpretation, dismissing the appeal.

The applicant school board sought judicial review of two Human Rights Tribunal of Ontario decisions finding it discriminated against an employee by failing to accommodate her disability and ordering her reinstatement with damages.

The Divisional Court dismissed the application, finding the Tribunal's decisions on liability and remedy were reasonable and amply supported by the evidence.

The Court also rejected the applicant's arguments regarding procedural fairness and reasonable apprehension of bias.

The appellant in a wrongful dismissal action sought to review a single Divisional Court judge's order dismissing her motion to admit fresh evidence on her pending appeal from a Master's order.

The Master had refused to allow amendments to the statement of claim, finding the limitation period had expired and rejecting the appellant's argument that she was incapable due to mental health issues.

The Divisional Court panel held that the motion judge made a palpable and overriding error by applying the Palmer test to reject the fresh evidence before the appeal was heard on its merits.

The panel set aside the order, directing that the admissibility of the fresh evidence be determined by the judge hearing the appeal.