ODC 2014

The applicant union sought judicial review of a labour arbitration award that denied a grievor's claim for a pension after 31 years of continuous employment.

The majority of the arbitration board had found that the grievor waived his right to pension benefits and that the doctrine of laches barred the grievance.

The Divisional Court held that the arbitration board's decision was unreasonable.

The collective agreement and pension plan documents mandated enrollment for full-time employees and did not permit waiver.

Consequently, the employer bore the obligation to ensure enrollment, and the equitable defence of laches could not apply where waiver was legally impermissible.

The application was granted, the award quashed, and the matter remitted to the arbitration panel.

The applicants sought judicial review of the respondent municipality's decision to revoke their kennel licence, alleging discrimination based on their religious beliefs.

The municipality had revoked the licence following inspections that revealed unsanitary conditions, poor ventilation, inadequate lighting, and a failure to provide necessary veterinary care.

The Divisional Court dismissed the application, finding that the municipality's decision was reasonable, based on credible evidence of by-law violations, and made following a procedurally fair process.

The applicants failed to meet their onus of proving bias.

The applicants sought to depart from the normal rule that costs follow the event after their application for judicial review of a Compensation Fund Committee decision was dismissed.

They argued that they had already suffered financial loss due to a lawyer's misappropriation, that the case involved a novel public interest issue, and that awarding costs would run contrary to the purpose of the Compensation Fund.

The Divisional Court rejected these arguments, finding the issues were not novel and that the applicants chose to pursue the judicial review knowing the costs risks.

The court awarded partial indemnity costs of $25,000 to the respondent Law Society.

The appellant, who sustained a severe traumatic brain injury, appealed a decision of the Health Services Appeal and Review Board denying her request for pre-approved funding for in-patient rehabilitative services at an Alberta facility.

The facility was not licensed as a hospital and did not accept public funding.

The appellant argued the denial breached her rights under sections 7 and 15 of the Charter.

The Divisional Court dismissed the appeal, finding that section 7 does not impose a positive obligation on the government to fund out-of-province medical treatments, and that the denial was based on the facility's licensing status, not the appellant's disability, thus not engaging section 15.

The applicants sought judicial review of four decisions of the Ontario Labour Relations Board, including procedural decisions denying an adjournment and change of venue, and a final decision declaring the applicants to be one employer bound to certain collective agreements.

The applicants argued the Board breached natural justice by refusing to adjourn the hearing from Toronto to Thunder Bay.

The Divisional Court dismissed the application, finding the Board's travel policy reasonable and noting the applicants failed to provide adequate reasons for their non-attendance when invited to do so.

The Court also upheld the Board's document production order.

The self-represented appellant brought a motion for an extension of time to perfect an appeal of a small claims court settlement agreement.

The appellant argued she did not understand the agreement due to a language barrier and lack of an interpreter.

Despite a substantial delay of up to one year, primarily caused by her former counsel, the court found her explanation reasonable.

The court granted the extension, noting the serious consideration required when a self-represented person enters an agreement without a needed interpreter.

The applicant union sought judicial review of a labour arbitration award which found the arbitrator lacked jurisdiction to hear grievances regarding the hospital's pension contribution deductions.

The arbitrator had concluded that the dispute fell within the exclusive jurisdiction of the pension plan administrator, not the collective agreement.

The Divisional Court applied the reasonableness standard of review and found the arbitrator's decision was justified, transparent, and intelligible, noting the arbitrator properly considered the collective agreement, agreed facts, and relevant jurisprudence including the Weber essential character test.

The application for judicial review was dismissed.

The appellants appealed an order granting the Ottawa Police Association a conditional representation order under Rule 12.08 of the Rules of Civil Procedure.

The underlying action involved 74 police officers who transferred from the OPP to the Ottawa Police Services Board and alleged negligent misrepresentation regarding their pension transfers.

The Divisional Court dismissed the appeal, finding that Rule 12.08 does not require an action to benefit all members of an association, nor is it limited to collective actions.

The court upheld the motion judge's findings on common issues and preferable procedure, confirming that a conditional order to substitute an appropriate representative plaintiff was permissible.

The defendant, the Attorney General of Canada, sought leave to appeal a decision certifying a class action and dismissing a motion to strike the amended statement of claim.

The class action was brought on behalf of Aboriginal children removed from their homes and placed in non-Aboriginal homes in Ontario between 1965 and 1984.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the certification judge's reliance on a 1965 Agreement that was not pleaded as the basis for the alleged fiduciary duty and duty of care, and noting the matter was of sufficient importance.

The appellant's action was dismissed by a Deputy Judge at a Small Claims Court settlement conference.

The appellant brought a motion before a second Deputy Judge to set aside the dismissal, which was denied for lack of jurisdiction.

The appellant appealed to the Divisional Court.

The court held that the original dismissal was a final order, meaning the second Deputy Judge correctly concluded he had no jurisdiction to hear what was effectively an appeal.

The court also declined to grant an extension of time to appeal the original dismissal order due to the lengthy delay and lack of intention to appeal within the statutory period.

The moving parties sought leave to appeal a joint and several costs order of $247,566.14 made against them following the respondent's successful motion to appoint a receiver.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision to award costs jointly and severally, including against the individual moving party personally.

The court held that the motions judge properly exercised his discretion and that the stringent test for granting leave to appeal a costs order was not met.

The parties brought cross-appeals from orders of a Master in a long-standing construction dispute over failed heat pumps.

The defendants appealed the Master's refusal to allow them to amend their statement of defence to withdraw an admission that the personal defendants were partners, and the requirement to provide particulars for other amendments.

The plaintiff appealed the Master's order restricting its examination for discovery to a specific personal defendant, and sought leave to appeal the Master's costs award.

The Divisional Court dismissed the defendants' appeal, finding the Master correctly applied the test for withdrawing an admission.

The Court allowed the plaintiff's appeal, holding the Master lacked jurisdiction to restrict discovery without consent, and varied the costs award from $5,500 to $25,000 due to the Master's failure to provide reasons for drastically reducing the costs sought by both parties.

The applicant sought leave to appeal an order dismissing its motion to enforce a settlement agreement, and alternatively, leave to appeal the costs order.

The motion judge had found that there were material issues of fact regarding whether the applicant had sustained the alleged investment losses, which was a condition of the settlement.

The Divisional Court held there was no good reason to doubt the correctness of the motion judge's decision and no conflicting decisions on principle.

The application for leave to appeal both the substantive order and the costs order was dismissed.

The Divisional Court determined the costs of a summary judgment motion, an application for leave to appeal, and the appeal itself, following the dismissal of the defendants' appeal.

The court upheld the motion judge's award of $18,000 for the summary judgment motion.

The court awarded the plaintiff partial indemnity costs of $10,000 plus HST for the leave to appeal application and $22,500 all-inclusive for the appeal, rejecting the plaintiff's request for substantial indemnity costs.

The appellant appealed an order determining the distribution of net proceeds from the sale of a joint venture winemaking business.

The appellant argued that all shareholder loans, whether secured or unsecured, should be repaid pro rata based on a shareholders agreement, which would effectively ignore the respondents' collateral mortgage and give the appellant almost all the proceeds.

The Divisional Court dismissed the appeal, holding that absent a clear provision to the contrary in the shareholders agreement, secured debts are properly payable in priority to unsecured debt.

The defendants sought leave to appeal a decision granting the plaintiffs leave to pursue claims under Part XXIII.1 of the Securities Act and certifying the action as a class proceeding.

The plaintiffs alleged the corporate defendant misrepresented its equity market risk by failing to disclose its decision to abandon hedging and reinsurance of guaranteed products.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's conclusions that the plaintiffs had a reasonable possibility of success at trial and that the common law misrepresentation claims were suitable for certification alongside the statutory claims.

The appellant appealed a Small Claims Court decision dismissing his various claims against his former common law partner and her daughter for rent, parking, and other fees related to their occupation of his condominium.

The Divisional Court held that the Small Claims Court erred in finding that the Landlord and Tenant Board's prior eviction order extinguished the appellant's claim for occupation rent against the daughter for the period after the Board's order.

The appeal was allowed in part, awarding the appellant $23,000 in occupation rent against the daughter, while the dismissal of the remaining claims was upheld due to lack of jurisdiction and expired limitation periods.

The applicant employer sought judicial review of an Ontario Labour Relations Board decision certifying a union as the exclusive bargaining agent for a construction industry bargaining unit.

The core issue was whether two employees performed construction industry work on the application date.

The Divisional Court found the Board's conclusion that disconnecting a pump for off-site repair constituted construction work 'at the site' to be unreasonable.

However, the Court upheld the Board's finding that replacing a thermal sensor constituted repair work, as it was a reasonable, fact-driven conclusion owed deference.

Consequently, the application for judicial review was dismissed.

The defendant appealed a trial judgment finding him liable for defamation and awarding the plaintiff $20,000 in damages.

The trial judge had held that while the defendant's statements in a union charge document were protected by qualified privilege, the privilege was defeated by malice.

On appeal, the Divisional Court found that the trial judge made a palpable and overriding error in finding malice.

The evidence demonstrated the defendant had an honest belief in the truth of the statements, and his conduct did not amount to recklessness or a personal vendetta.

The appeal was allowed and the defamation claim was dismissed.

The applicant applied for a school purposes bus licence.

The Ministry of Transportation deferred the decision until the applicant's outstanding criminal charges were resolved.

The applicant sought judicial review to overturn the deferral or compel a decision.

The Divisional Court found the application was not premature but held that the Minister's decision to defer was reasonable given the safety concerns arising from the outstanding charges, which included possession of a switchblade and possession of controlled drugs for the purpose of trafficking.

The application for judicial review was dismissed.