ODC 2014

The plaintiffs sought leave to appeal a motions judge's order that made no award of costs for several motions.

The plaintiffs argued there was good reason to doubt the correctness of the decision and that it involved issues of general importance.

The Divisional Court dismissed the motion for leave to appeal, finding that costs are a quintessential exercise of discretion and the motions judge made no error in principle.

The court also noted that the plaintiffs were seeking an indulgence and that the case did not raise any matters of general importance.

The appellant moved to transfer a residential tenancy appeal from Brampton to Toronto and to expedite the hearing due to the appellant's terminal illness.

The respondents opposed the motion, arguing inconvenience and unfairness.

The court granted the motion, finding that the uncontradicted evidence of the appellant's terminal cancer made the transfer and expedition desirable in the interests of justice, and that the respondents failed to demonstrate any resulting unfairness or inconvenience.

The appellant employee was laid off after seven years of employment and subsequently paid his minimum entitlements under the Employment Standards Act.

He sued for wrongful dismissal, arguing the layoff was a constructive dismissal and that the employer's breach, along with its failed after-the-fact allegation of just cause, precluded it from relying on the employment contract's termination clause.

The Divisional Court dismissed the appeal, holding that neither the constructive dismissal nor the failed just cause defence prevented the employer from invoking the contractual provision limiting severance to the statutory minimums.

The applicant sought judicial review of an arbitration award that declared pre-access alcohol and drug testing, implemented in response to Suncor's site access requirements, violated the collective agreement.

The Divisional Court applied the reasonableness standard of review and upheld the arbitrator's decision, which relied on the Supreme Court of Canada's framework in Irving Pulp & Paper.

The court found the arbitrator reasonably concluded there was no evidence of a substance abuse problem at the Sarnia worksite to justify the privacy intrusion of pre-access testing.

The application for judicial review was dismissed.

The defendant moved for leave to appeal an order dismissing his motion for summary judgment.

The underlying action arose from a motor vehicle accident, and the defendant argued the claim was statute-barred because the plaintiff ought to have discovered his chronic pain claim within two years of the accident.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision.

The court held that the plaintiff was entitled to rely on the discovery evidence filed by the defendant on the summary judgment motion, and that the motion judge correctly applied the discoverability principles to find the plaintiff had exercised reasonable diligence in investigating whether his injuries met the statutory threshold.

The plaintiff sought leave to appeal a motion judge's decision disqualifying its counsel of record due to an alleged conflict of interest.

The motion judge had disqualified the firm because it had previously represented a former employee of the defendants and obtained confidential information, despite acknowledging the defendants were not clients of the firm.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order since the defendants had not disclosed the information to the firm and were not clients, raising serious debate about the basis for disqualification.

The appellants, police officers and the Toronto Police Services Board, appealed a Small Claims Court judgment finding them liable for excessive force during the arrest of a cyclist who ran a red light and fled.

The Divisional Court allowed the appeal and ordered a new trial, finding that the trial judge erred in law by failing to apply the justification analysis under section 25 of the Criminal Code and section 218 of the Highway Traffic Act.

The trial judge committed a palpable and overriding error by ignoring the exigent circumstances of the arrest and imposing an unrealistic standard on the officers.

The appellant was successful on appeal, overturning the trial judge's award of Charter damages, and sought costs of $7,500.

The respondent argued that because he offered to settle for $100 and the court awarded him that amount, he obtained an award equal to his offer.

The court rejected this argument, noting the appeal decision was clearly more favourable to the appellant than the offer to settle.

Costs were fixed at $7,500 payable to the appellant.

Following the dismissal of two appeals heard together, the successful respondents sought costs.

One respondent sought substantial indemnity costs based on a Rule 49 offer to settle, while the other sought partial indemnity costs.

The appellant argued that no costs should be awarded because the appeal raised a novel issue of law regarding the interpretation of the Construction Lien Act.

The Divisional Court rejected the appellant's argument, finding the issue was not novel and the appellant's interpretation would have rendered section 20(2) of the Act meaningless.

The court awarded costs of $7,500 to each of the successful respondents.

The appellant appealed a decision of the Discipline Committee of the Registered Insurance Brokers of Ontario.

A previous order had imposed a penalty, suspended it on conditions, and specified that the penalty would take effect immediately if the conditions were breached.

When the appellant breached the conditions, the Committee imposed a harsher 15-month suspension instead of the prescribed penalty.

The Divisional Court found this unreasonable, as the breach was specifically contemplated by the previous order.

The appeal was allowed, and the original penalty was ordered to be enforced.

The appellants appealed a Small Claims Court decision ordering them to repay $21,029.98 to the respondent for a botched solarium roof replacement.

The trial judge found the work was shoddy, negligent, and performed without a building permit, providing no benefit to the respondent.

The trial judge also pierced the corporate veil to hold the individual appellant personally liable.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the factual findings and upholding the decision to impose personal liability due to the individual's improper conduct.

The plaintiff brought a motion for leave to appeal an order that dismissed its motion to disqualify the defendants' law firm of record.

A lawyer who had worked extensively on the plaintiff's case moved to the defendants' boutique law firm.

The plaintiff argued the ethical wall put in place was insufficient.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order because he appeared to reverse the onus by treating the matter as a balancing act rather than applying the rebuttable presumption of disqualification.

The court also found the issue of migrating lawyers and confidential information to be of significant importance to the profession and the public.

The defendant bailiff company brought a motion for leave to appeal a decision dismissing its motion for summary judgment.

The bailiff argued it had statutory immunity for seizing a crane, relying on a previous case.

The Divisional Court dismissed the motion for leave to appeal, finding the previous case distinguishable because the bailiff here seized property from a location and person not named in the writ of seizure.

The court held the bailiff did not act in accordance with the court order, and there was no good reason to doubt the correctness of the motion judge's decision.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision finding he created a poisoned work environment through racial and sexual comments.

The Divisional Court found that the adjudicator's conclusions on two of the four allegations were unreasonable, particularly regarding the improper reliance on hearsay evidence to determine the content of a conversation.

As the finding of a poisoned work environment relied on the cumulative effect of all four incidents, the decision was set aside and remitted for a new hearing.

The court also struck down the systemic remedy requiring the applicant to notify former employees of a new human rights policy.

The Public Guardian and Trustee, acting as litigation guardian for a mentally incapable plaintiff, appealed a motion judge's refusal to approve settlements that would dismiss two actions without costs.

The motion judge had held that the plaintiff had an absolute right to a hearing.

The Divisional Court allowed the appeal, finding that there is no absolute right to a hearing and that a litigation guardian has the authority to settle actions if it is in the best interests of the party under disability.

The court approved the settlements.

The appellant, a long-time member of the Hells Angels, appealed a decision by the Licence Appeal Tribunal revoking his liquor licence.

The sole issue on appeal was whether the Tribunal erred in law by failing to articulate adequate reasons for rejecting an order imposing conditions as an alternative to revocation.

The Divisional Court determined the applicable standard of review was reasonableness and found that the Tribunal's reasons were sufficient, as the proposed conditions would not overcome the concerns regarding the licensee's membership in a criminal organization.

The appeal was dismissed.

The applicants sought leave to appeal to the Divisional Court from an order dismissing their motion for summary judgment.

They argued the motion judge failed to properly apply the summary judgment framework from Hryniak v. Mauldin and failed to provide adequate reasons.

The Divisional Court dismissed the motion for leave, finding no good reason to doubt the correctness of the motion judge's decision, as the judge had properly identified genuine issues of credibility regarding alleged undue influence and elder abuse, and correctly concluded that fact-finding powers could not resolve the dispute fairly.

The court also found the proposed appeal did not involve matters of general public importance.

The applicant union sought judicial review of an interest arbitration award, arguing the arbitrator denied procedural fairness by failing to disclose a dispute over the cost of a step progression freeze, making a finding without evidence, and refusing to order production of certain financial source documents.

The Divisional Court dismissed the application, finding that the arbitrator's procedures and disclosure rulings were reasonable given the flexible and informal nature of interest arbitration.

The court also found there was sufficient evidence in the parties' briefs to support the arbitrator's findings on the cost of the step progression freeze.

The appellant appealed a Small Claims Court decision dismissing her claim for vehicle damage and awarding the respondent insurer damages on its counterclaim for a staged accident.

The appellant argued the trial judge misapprehended the evidence and failed to find a conspiracy against her.

The Divisional Court applied the standard of palpable and overriding error for findings of fact, concluding the trial judge's findings were reasonable and supported by the evidence.

The appeal was dismissed.

The landlords brought a motion to quash the tenant's appeal of an eviction order.

The tenant had failed to comply with a previous court order to order transcripts and perfect the appeal, citing an inability to afford them.

The court noted the significant delays and the ongoing hardship to the landlord, who was suffering from stage IV cancer.

Finding that the appeal would not be perfected and was motivated by a desire to delay eviction rather than on its merits, the court granted the motion, quashed the appeal, and lifted the stay.