ODC 2014

The appellants appealed a trial decision awarding the plaintiffs $20,000 for a purchaser's lien and dismissing their counterclaim and crossclaims, as well as the subsequent costs awards.

The appellants argued the $20,000 award constituted double recovery because the plaintiffs had previously settled with other defendants for $400,000.

The Divisional Court dismissed the appeal, finding no double recovery because the purchaser's lien claim was only advanced against the appellants.

The court also found no error in principle in the trial judge's discretionary costs awards.

The moving party sought an extension of time to appeal a Small Claims Court decision dismissing its negligence claim against a mediator.

The mediator had issued a Certificate of Non-Compliance that erroneously referred to a separate legal action.

The Divisional Court dismissed the motion, finding no merit to the proposed appeal because the moving party could not establish any damages causally connected to the error, and any remedy would properly be against the Condominium Corporation rather than the mediator.

The self-represented appellant appealed a Master's summary judgment order that upheld the validity of his late mother's will and dismissed his notice of objection.

The appellant, who had been estranged from his mother for 40 years and received a $200 legacy, argued the Master exceeded his jurisdiction, misapprehended evidence regarding testamentary capacity, and demonstrated bias.

The Divisional Court dismissed the appeal, finding the Master correctly applied the test for summary judgment, did not exceed his jurisdiction, and reasonably concluded there was no genuine issue requiring a trial based on the consistent evidence of the estate.

The respondent, having been successful in the appeal, sought costs on a substantial indemnity basis, citing criticisms of the appellant's counsel.

The Divisional Court rejected the request for substantial indemnity costs, finding that counsel's failure to remit a notice of hearing was minimally inconvenient and that punishing a party for their counsel's inaccurate time estimate was inappropriate.

Costs were awarded to the respondent fixed at 60% of actual costs, inclusive of disbursements and taxes.

The defendant franchisor appealed a motion judge's refusal to transfer the venue of a franchise dispute from Hamilton to Kitchener.

The defendant argued the motion judge erred by not requiring the plaintiffs' chosen venue to have a rational connection to the claim, relying on the Siemens decision.

The Divisional Court dismissed the appeal, clarifying that motions to change venue require a holistic application of the factors in Rule 13.1.02(2) of the Rules of Civil Procedure.

The court found no error in the motion judge's balancing of the factors and affirmed that a plaintiff's choice of venue, even if lacking a strong rational connection, may be upheld if the defendant fails to demonstrate that a transfer is desirable in the interests of justice.

The plaintiff brought a motion for leave to appeal a decision of the motions judge, who had dismissed a civil contempt motion and refused to strike two affidavits.

The plaintiff argued he was denied the opportunity to cross-examine on the affidavits.

The Divisional Court dismissed the motion, finding the plaintiff had ample opportunity to seek cross-examination prior to the hearing.

The court held that the motions judge correctly applied the test for civil contempt, there was no conflicting jurisprudence, no reason to doubt the correctness of the order, and the proposed appeal did not involve matters of public importance.

Leave to appeal the costs order was also denied.

Costs of the motion were fixed at $3,500 against the plaintiff.

The appellant lawyer, acting as an executor, advanced an unsecured loan from estate assets to an employee to placate a client.

The Law Society Hearing Panel found this to be conduct unbecoming a lawyer and a breach of fiduciary duty.

The Appeal Panel affirmed the decision.

On appeal to the Divisional Court, the appellant argued the panels failed to properly apply the prudent investor test under section 27 of the Trustee Act.

The court dismissed the appeal, finding the standard of review was reasonableness and the panels correctly concluded the investment was imprudent as it was motivated by personal interests rather than an overall investment strategy.

The applicant, a certified general accountant, sought judicial review of a professional misconduct conviction based entirely on deemed admissions.

The applicant had failed to respond to a request to admit within the 20-day period due to personal stress and seeking new counsel.

The conduct committee dismissed his motion to withdraw the deemed admissions without providing reasons, and he was subsequently convicted without being permitted to call evidence.

The Divisional Court allowed the application, finding that the conduct committee's decision was unreasonable and that the failure to provide reasons for a decision of such significance constituted a breach of natural justice.

The applicant, a suppression firefighter, sought judicial review of a Human Rights Tribunal of Ontario decision that summarily dismissed his age discrimination complaint regarding mandatory retirement at age 60.

The Tribunal had dismissed the complaint under Rule 19A, finding no reasonable prospect of success based on a previous test case (Espey) that upheld the mandatory retirement provision as a bona fide occupational requirement.

The Divisional Court held that the Tribunal's decision was reasonable, as the applicant failed to provide evidence demonstrating that the result in his case would differ from the established precedent.

The defendants sought costs on a partial indemnity scale following the dismissal of the plaintiff's motion for leave to appeal.

The plaintiff argued that he should be awarded costs or that no costs should be ordered.

The court found no reason to depart from the general rule that costs follow the event, noting that the plaintiff had initially sought the very adjournment that the motion judge ultimately granted.

Costs were awarded to the defendants in the amount of $6,122.73.

The Town of Oakville sought judicial review of an Ontario Municipal Board decision that permitted a temporary change of use for two commercial properties to be farmed, providing a tax benefit.

The temporary change expired before the hearing, and the respondents did not appear.

The Divisional Court declined to hear the application, finding the matter moot and noting that deciding a case with broad policy implications without adversarial submissions would breach procedural fairness.

The appellant appealed a decision regarding child support and section 7 expenses for two disabled children.

The Divisional Court found the application judge erred in concluding the older child, who resided full-time in a care facility, had withdrawn from parental control and was not a child of the marriage.

The court also found the judge misapprehended the evidence regarding respite care subsidies for the younger child.

The matter was remitted to the application judge to recalculate the section 7 expenses and arrears.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that dismissed her discrimination complaint against her university and an arbitrator.

The applicant alleged that the arbitrator's report, which found her harassment allegations unfounded, was discriminatory and that the arbitrator lost adjudicative immunity.

The Divisional Court dismissed the application, finding it to be a duplicative and meritless attempt to relitigate previous findings, and upheld the HRTO's conclusions on reasonable prospect and adjudicative immunity.

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy and evicting them for committing an illegal act (breach of zoning by-law).

The Divisional Court found the Board erred by reversing the onus of proof regarding the zoning issue when there was no evidence the cabin was in the prohibited zone.

Furthermore, the Board erred in law by failing to dismiss the eviction application under s. 83(3) of the Residential Tenancies Act.

The court found the eviction application was brought because the tenants had successfully enforced their legal rights to resist an illegal rent increase, which mandates refusal of the eviction regardless of the landlord's good or bad faith.

The appeal was allowed and the eviction application dismissed.

The applicant, a police officer, brought a motion to set aside a Registrar's order dismissing his appeal for delay.

The appeal was from a disciplinary decision of the Ontario Civilian Police Commission.

The applicant failed to perfect the appeal and did not respond to the respondent's inquiries.

The court applied the four factors for setting aside a dismissal order and found that the applicant failed to provide an acceptable explanation for the delay, did not act inadvertently, failed to move promptly to set aside the order, and that the merits of the appeal were highly questionable.

The motion was dismissed.

The appellant moved before the Divisional Court to review an order dismissing her motion to waive the fee for a transcript required for her Small Claims Court appeal.

The appellant alternatively sought to proceed without a transcript or have the respondent pay for it.

The court upheld the motion judge's finding that there is no statutory authority to waive transcript fees under the Administration of Justice Act.

The court also held that a transcript was necessary because the appeal was fact-driven, and declined to order the respondent to pay for it as the case did not meet the test for interim costs.

The motion was dismissed with costs.

The appellant appealed a Small Claims Court decision dismissing its action for breach of contract against the respondent paralegal.

The appellant claimed the parties had reached a verbal settlement and release, which the respondent allegedly breached by initiating a claim with the CRA for insurable and pensionable earnings.

The Divisional Court found no palpable and overriding error in the trial judge's conclusion that there was no binding verbal agreement and release.

The appeal was dismissed.

The applicant, a lawyer facing misconduct allegations, applied for judicial review of a Law Society Hearing Panel's interlocutory decision dismissing his jurisdictional challenge.

The Law Society argued the application was premature.

The Divisional Court agreed, finding that the statutory appeal mechanism provided an adequate alternative remedy and that the applicant failed to establish exceptional circumstances justifying early intervention and fragmentation of the administrative process.

The application was quashed.

The appellants appealed an interlocutory order requiring the appellant corporation to pay the respondents' interim legal fees and disbursements in an oppression remedy application pursuant to s. 249(4) of the Business Corporations Act.

The Divisional Court upheld the motions judge's decision to order payment of unpaid and future accounts at face value without an approval process, finding no palpable and overriding error.

However, the court allowed the appeal in part, finding that the motions judge erred in ordering the reimbursement of accounts already paid by the respondents, as there was no evidence that failing to reimburse those specific amounts would preclude them from pursuing their claims.

The plaintiff appealed the dismissal of its motion to certify a class action against the defendant, which manages Ontario's electronic land registry system.

The proposed class action alleged that the defendant's database constituted copyright infringement of plans of survey.

On appeal, the plaintiff recast its case by revising the class definition and common issues.

The Divisional Court allowed the appeal, finding that the plaintiff could recast its case absent non-compensable prejudice to the defendant.

The court held that the motion judge erred in requiring evidence that two or more persons were desirous of pursuing the claim to satisfy the identifiable class criterion.

The revised class definition and common issues met the certification criteria under the Class Proceedings Act, 1992.